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Prolonged Battle Over Maury Island Barge-Loading Facility Raises Shoreline, Growth Management Issues

In a closely watched case raising issues relating to shoreline management and growth management in Washington state, two environmental groups and King County have filed a petition with the Washington State Supreme Court for review of a Court of Appeals’ decision permitting a proposed barge loading facility on Maury Island in Puget Sound. The case raises significant issues as to the interplay between two laws: the Shoreline Management Act of 1971 (“SMA”), Chapter 90.58 RCW, and the Growth Management Act (“GMA”), Chapter 36.70A RCW. The intersection of these two overlapping statutes has been a long-standing issue of interest to land-use practitioners, a headache for the administrative agencies and boards implementing these laws, and the subject of significant scrutiny by the legislature and courts.

The petition for review is the latest in a prolonged battle between the groups and a sand and gravel mining company, Northwest Aggregates Company (a.k.a “Glacier”), over the company’s proposed facility on the south end of the island. Glacier operates a 235 acre sand and gravel mine there. In 1968, a prior owner built a barge loading facility on the southeast shore of the Island to allow the company to ship sand and gravel by barge. The facility consisted of a dock and pilings, seven dolphin moorings, trestle, and a conveyer system water-ward of the company’s mining operation. At peak operations in 1978, Glacier shipped 2.8 million tons of mined sand and gravel off the Island. Shortly thereafter, the company ceased shipping material from the Island and used trucks to transport the material. Since 1998, the company has sought to renovate the dilapidated barge-loading facility to expand operations, and allow barge transport of up to 7.5 million tons of sand and gravel annually.

This case originated when the King County Department of Development and Environmental Service (“DDES”) denied Glacier’s applications for substantial shoreline development and shoreline conditional use permits to replace the barge-loading facility in March 2004. In denying the permits, the County found the project was not a “water dependent” use and thus failed to satisfy shoreline permit requirements. Glacier appealed the County’s decision to the Washington State Shorelines Hearings Board (“Board” or “SHB”) in 2004. Environmental groups, including Preserve Our Islands, the Washington Environmental Council, and People for Puget Sound also filed a petition for review with the SHB, and the cases were consolidated. On November 3, 2004, the Board unanimously overturned the County’s denial of Glacier’s shoreline permit applications, and remanded the proposal to the County for issuance of the permits with conditions. The environmental groups and King County appealed the SHB’s decision to King County Superior Court, and the case was submitted to the Court of Appeals for direct review. The Court of Appeals affirmed the SHB’s order requiring King County to issue the shoreline permits.

While the Court of Appeals considered a number of issues, the most significant relate to the interplay between the SMA and the GMA. King County may issue shoreline development permits for proposed projects that conform to SMA policies, and the County’s Shoreline Master Program. The Shoreline Master Program establishes a comprehensive plan for regulation of shoreline uses within local jurisdictions. Since the area in which the Glacier project is located is designated a “Conservancy Environment” under the Shoreline Masters Program, preferred uses should be “non-consumptive of the area’s physical and biological resources, and must be “water dependent.” A “water dependent” use is defined as “a principal use which can exist only where the landwater interface provides biological or physical conditions necessary for use.” In contrast, a “water related use,” is defined as “a principal use which is not intrinsically dependent on a location abutting the high water mark,” but which has other values. “Water related uses” are prohibited in a Conservancy Environment but “water dependent” uses are allowed.

Relevant to this case, the Growth Management Act (“GMA”), Chapter 36.70A RCW, requires cities and counties to adopt a comprehensive plan and to designate “[m]ineral resource lands that are not already characterized by urban growth and that have long-term significance for the extraction of minerals.”[16] Despite the area’s designation under the SMA as a “Conservancy Environment,” the County has “zoned Glacier’s site for commercial mining and designated it as mineral resource land under the Growth Management Act without any restrictions on the size of use.”

Since only water dependent uses are allowed in a Conservancy Environment, and water dependency is based on a facility’s “principal use,” the Court of Appeals first had to characterize the “principal use” of the site, and then determine whether that principal use was “water dependent” or “water related.” In so doing, the Court had to decide whether the County’s GMA regulations requiring a “commercially significant mining operation” in the area should inform designation of a site’s “principal use” or whether, instead, the use designation under the SMA should trump the County’s zoning and GMA designation.

In reviewing the SHB decision, the Court of Appeals first considered meaning of the term “principal use” under the King County Shoreline Master Program. Appellants King County and environmental groups contended that the term “principal use,” as used in the SMA definition of “water dependent uses” is not ambiguous, and so not subject to interpretation by the SHB. Based upon this view of the language, appellants argued that the barge loading facility is merely an accessory use to the site’s “principal use” of mining. Since water dependency is based on a facility’s “principal use,” and the mine had operated without barging for nearly half a century, appellants concluded the principal use of the site, mining, was not water-dependent.

In contrast, Glacier argued that the term “principal use” was ambiguous since it was undefined and so was subject to interpretation by the SHB. Based on the property’s zoning and designation as resource lands under the GMA, Glacier argued the principal use of the facility as a whole was “a commercially significant mining operation.” According to Glacier, the barge-loading facility was an integral part of this principal use, because the barge-loading facility was “located on a small island without viable large-scale ground transportation options.”

The Court of Appeals, granting deference to the SHB, held that the facility was a permitted water dependent use. Relying on the definitions of “primary” and “use” in Webster’s dictionary, the court concluded that phrase appropriately referred to the “primary activity or function occurring on (1) an area of land or (2) a building or structure.” Next, relying on the County’s mineral resource land designation under the GMA and zoning, the court determined the “primary activity” at the Glacier site was a “commercially significant mining operation.” Since the court concluded the property’s designated use, not past use, was the relevant inquiry, it found the proposed barge-loading facility was part of the “principal use” and was an allowed water dependent use.

In using the County’s zoning and GMA designation to determine the facility’s “principal use,” the Court of Appeals (Division One) attempted to harmonize the shoreline Master Program and GMA comprehensive plan. In so doing, the court “respectfully disagreed” with earlier holding of the Division Two Court of Appeals in Biggers v. City of Bainbridge Island. In Biggers, the Division Two court held that the “GMA clearly specifies that [the SMA] governs the unique criteria for shoreline development. In other words, the SMA trumps the GMA in this area.”

Following the Court of Appeals’ affirmation of the SHB decision, Glacier Northwest vice president Bill Parfitt stated the Court of Appeals’ decision “is another in a long line of legal and regulatory decisions that have concluded the Maury Island mine is an environmentally sensitive project that benefits the region. Opponents of the project disagree, and express concern that “the mine and pier would level a madrone forest, damage eelgrass beds used a habitat by herring and salmon, and threaten the island’s underground drinking-water supply.”

Issues for the Supreme Court

The environmental groups and County have asked for state Supreme Court review of: 1) whether the lower court should have granted deference to the County, and not the Shoreline Hearings Board’s interpretation of the SMA; 2) whether the SHB is “required to grant deference to a county’s interpretation of its own Growth Management Act (“GMA”) land use designations and zoning;” 3) whether the barge loading facility is a “water dependent use” since the mine has operated for approximately half a century without water access; and 4) whether the SMA and Shoreline Master Program should take priority over GMA policies and regulations. If the Supreme Court grants review of this case, it will also help to resolve the conflict among the courts of appeals concerning primacy of the SMA over GMA policies and regulations.

Please contact Laura Fandino for further information about this case.