Pres. Responsible Shoreline Mgmt. v. City of Bainbridge Island

PRESERVE RESPONSIBLE SHORELINE MANAGEMENT, Alice Tawresey, Robert Day, Bainbridge Shoreline Homeowners, Dick Haugan, Linda Young, Don Flora, John Rosling, Bainbridge Defense Fund, Gary Tripp, and Point Monroe Lagoon Home Owners Association, Inc., Appellants, v. CITY OF BAINBRIDGE ISLAND, Washington State Department of Ecology, Environmental Land Use Hearing Office and Growth Management Hearings Board Central Puget Sound Region, Respondents, and Kitsap County Association of Realtors, Intervenor Below.

No. 56808-0-II

Court of Appeals of Washington, Division 2

December 13, 2022

UNPUBLISHED OPINION

Price J.

Preserve Responsible Shoreline Management (PRSM) appeals the Growth Management Hearing Board's (Board) order upholding the City of Bainbridge Island's (City) shoreline master program (Master Program). PRSM asserts the following grounds for relief under the Administrative Procedure Act (APA):^[1] the Board erroneously interpreted or applied the law the Board's order was not supported by substantial evidence, and the Board's order was arbitrary or capricious. PRSM also asserts that the Master Program was unconstitutional. We determine that PRSM fails to meet its burden for relief and affirm.

FACTS

I Bainbridge Island Master Program Update

In 2010, the City began updating its Master Program. The City commissioned several scientific studies to help determine how to protect the shoreline and received public comments on the update to the Master Program.

A. Scientific Studies

One study, commissioned by the City in 2003, was the Bainbridge Island Nearshore Assessment. The study summarized the then-available science applicable to the shorelines in Bainbridge Island. The study discussed various aspects of the shoreline ecosystem, including discussion of nearshore animal species, nearshore habitats and ecological functions, nearshore physical processes such as erosion and tides, and impacts of human shoreline modifications like bulkheads on nearshore habitats. The study made several recommendations, including that the City produce an inventory of the Bainbridge Island shoreline where the marine habitats meet land.

The second study, commissioned by the City in 2004, was the Bainbridge Island Nearshore Habitat Characterization & Assessment, Management Strategy Prioritization, and Monitoring Recommendations (Nearshore Habitat Characterization). The study separated the 53 miles of shoreline into 9 management areas, comprised of 201 individual shoreline reaches. Each shoreline reach was given an individual ecological function score based in its geomorphology, habitat structure, habitat processes, and other controlling factors.

In 2010, the City commissioned Coastal Geologic Services Inc. to prepare the Bainbridge Island Current and Historic Coastal Geomorphic/Feeder Bluff Mapping. The purpose of the study was to "to map coastal geomorphic shoretypes (such as 'feeder bluffs') and prioritize restoration and conservation sites along the marine shores of Bainbridge Island nearshore . . . ." Administrative Record (AR) at 4152. The study divided the shoreline into 32 areas called "drift cells" and assessed their ability to serve as "functioning sediment sources and transport pathways" necessary to maintain intact coastal geomorphic processes. AR at 4153, 4160. The study addressed the negative impacts of shoreline modifications, such as bulkheads and other forms of shore armoring. The study stated that "sediment impoundment is probably the most significant negative impact" of shore armoring, that "[s]everal habitats of particular value to the nearshore ecosystem rely on intact geomorphic processes and are commonly impacted by shore armor," and that shoreline armoring "can have substantial negative impacts on nearshore habitats" through the loss of marine vegetation, the loss of nearshore large woody debris, and the "partial or major loss of spits that form estuaries and embayments." AR at 4154-55.

In 2011, the City also commissioned an update to the 2003 and 2004 studies, the Addendum to the Summary of the Science Report (Addendum) by Herrera Environmental Consultants Inc. (Herrera). The Addendum relied on more than 250 sources, including studies and reports specific to the Puget Sound. The purpose of the Addendum was to provide "updated information on shoreline and nearshore ecology, physical processes, habitats, and biological resources of Bainbridge Island" and make recommendations for implementation of the "no net loss" standard and for "marine shoreline protective buffers considering geomorphic conditions and shoreline vegetation." AR at 4240-41. Specific to the buffers, the Addendum stated that "[b]uffers can be important to the protection of the functions and processes of the nearshore environments along marine coastlines," and suggested different approaches to shoreline buffers. AR at 4306. The two suggestions for shoreline buffers included fixed-width buffers based on typical conditions present on Bainbridge Island and variable-width buffers, which could result from the different site conditions and resources to be protected. The Addendum stated:

Approaches to establishing buffers vary between fixed or variable width, with the former generally being the most common (Haberstock et al. 2000). To be effective under a worst-case scenario, and to ensure success in the face of uncertainty about specific site conditions, May (2000) and Haberstock (2000) suggest that fixed-width buffers should be designed conservatively (i.e., larger than the bare minimum needed for protection).

AR at 4314.

Based on the Addendum, the City requested that Herrera make specific recommendations for shoreline buffers to be incorporated into the Master Program. Herrera created two memoranda: August 11, 2011, Memorandum re: Documentation of Marine Shoreline Buffer Recommendation Discussions and August 31, 2011, Memorandum re: Clarification on Herrera August 11, 2011, Documentation of Marine Shoreline Buffer Recommendation Discussions Memo. The memoranda explained that shoreline buffers protect a wide variety of ecological functions, including water quality and mineralization, fine sediment control, shade/microclimate, fish and invertebrate food from litterfall and large woody debris, and hydrology/slope stability. The memoranda summarized the buffer width recommendations made throughout relevant scientific literature and how the buffer widths widely vary based on the protection goal of the buffer. Buffer width recommendations mostly ranged from 16 to 328 feet, with the buffers width recommendation for removing pollution from stormwater runoff reaching 1,969 feet. The buffers in the scientific research were what the literature stated was necessary to achieve at least 80 percent buffer effectivity.

Herrera recommended that the City establish a two-tiered buffer system. Herrera recommended that "Zone 1" be established as a "riparian protection zone" in which existing native vegetation would be preserved and development would be significantly restricted. AR at 4362. This recommendation was based on the ecological functions provided by native vegetation close to the shoreline that is fundamental to maintaining a healthy functioning marine nearshore. Herrera recommended that Zone 1 extend a minimum of 30 feet from the high water mark, or to the limit of the area of the shoreline that had a 65 percent canopy of native vegetation, whichever was greater, in order to achieve 70 percent or greater effectiveness at protecting water quality. The memorandum stated that 30 foot buffers were the minimum to achieve that 70 percent effectiveness level.

Herrera recommended that "Zone 2," the second tier of the buffer, be comprised of variable-width buffers depending on the shoreline designation of a specific site. Herrera recommended that Zone 2 be located immediately landward of Zone 1 and serve to provide additional protection to the riparian protection zone and other protection functions. Herrera's recommendations included the consideration that Bainbridge Island's shorelines were 82 percent developed, and the City desired to limit the number of existing structures that would be nonconforming with wide shoreline buffers under the proposed Master Program update.

The final item commissioned by the City was the Cumulative Impacts Analysis for City of Bainbridge Island's Shoreline: Puget Sound, prepared by Herrera. This analysis considered whether the Master Program's provisions would ensure no net loss of shoreline ecological functions and fairly allocate the burden of addressing cumulative impacts. This analysis summarized the shoreline's existing conditions based on the previous studies, considered the development that was anticipated on the shoreline, considered the likely impacts of the development on shoreline ecological functions, and considered how implementation of the proposed Master Program would affect those functions. The analysis concluded that "implementation of the proposed [Master Program] is anticipated to achieve no net loss of ecological functions in the City of Bainbridge Island's shorelines." AR at 2206.

B. Public Comments and Communication

When the City opened public comments on the Master Program update, it received over 1,600 comments. The City individually responded to almost all of the comments submitted to it, although some of the City's responses only stated, "Comment noted." E.g., AR at 2773. The Department of Ecology (Ecology) received at least 111 comments on the proposed Master Program update, and the City categorized and then responded to the Ecology comments in groups. Some comments did not receive a response from the City.

II. The Master Program

On July 14, 2014, at the conclusion of the update process, the City approved the...