Including Best Available Science in the Designation and Protection of Critical Areas Under the Growth Management Act
| Publication year | 1999 |
| Citation | Vol. 23 No. 04 |
I. Introduction and Background
Washington's Growth Management Act (GMA), located in title 36, chapter 70A of the Revised Code of Washington (RCW), was enacted in 1990 and 1991 in response to public concerns about rapid population growth and increasing development pressures in the state, especially in the Puget Sound region.(fn1) The GMA has remained controversial and has been amended every year since its original enactment.(fn2)
The GMA requires every county and city in Washington to adopt development regulations that designate and protect critical areas.(fn3) "Critical areas" are defined to "include (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."(fn4) The designation and protection of critical areas is one of the first requirements that must be satisfied under the GMA.(fn5)
The GMA requires that critical areas be designated and protected before other planning requirements are undertaken. This precludes the designation of critical areas as suitable for urban development and prevents irreversible environmental harm while the comprehensive plan and implementing development regulations are prepared.(fn6) While critical areas regulations can be altered if necessary to achieve consistency between the critical areas regulations and the subsequently adopted comprehensive plan and implementing development regulations,(fn7) the designations and protections provided by the critical areas regulations must be incorporated into the comprehensive plan and implementing development regulations.(fn8) The designation and protection of critical areas is an important determinant of where development should or should not occur.
In designating and protecting critical areas, counties and cities must (1) consider the minimum guidelines adopted by the Washington Department of Community, Trade, and Economic Development (DCTED),(fn9) (2) "include the best available science in developing policies and development regulations to protect the functions and values of critical areas,"(fn10) and (3) "give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries."(fn11)
This Article discusses the meaning of these latter two requirements: the requirements to include best available science and to give special consideration to the conservation of anadromous fisheries. Section II defines "best available science" by examining the fundamental characteristics of scientific information applied in the context of the GMA. Expanding on the work of a technical team convened by DCTED, this Article suggests an approach useful for identifying scientific information and assessing which of that information should be considered the "best available science." Section III concludes that the requirement of RCW 36.70A.172(1) to include best available science is a substantive requirement. Section IV explains the relationship between the two requirements in RCW 36.70A.172(1): the substantive requirement to include best available science and the requirement to give special consideration to anadromous fisheries.
In 1995, the Legislature added a new section to the GMA that raised the standard for designating and protecting critical areas:
RCW 36.70A.172 was derived from a recommendation of the Governor's Task Force on Regulatory Reform(fn13) intended to provide more specific policy direction to local governments and to the Growth Management Hearings Boards.(fn14) The articulated purpose of adopting RCW 36.70A.172(1) was to clarify the state's goals and policies for protecting critical areas under the GMA.(fn15) Arguably, the statute succeeded in accomplishing that purpose. However, because the Legislature, apparently following the Task Force's lead,(fn16) elected not to establish specific state or regional standards for critical areas or to identify acceptable sources of scientific evidence, the statute still creates uncertainty for local governments and for the Growth Management Hearings Boards: What is "best available science"? How and where does a local government or interested person obtain it? Must the local government obtain "best available science" itself, or may the local government simply rely on information provided by persons participating in the local government's process to adopt critical areas regulations? What does it mean to "include" best available science?
In September 1998 DCTED convened a technical team to discuss the meaning of the requirements in RCW 36.70A.172(1). The team, which met approximately six times over three months, was comprised of scientists and planners from the Washington Departments of Ecology, Fish and Wildlife, Natural Resources, and other state resource agencies, as well as land use planners from DCTED. Planners and scientists from local governments participated as their schedules permitted. Other planners and scientists were invited, but were unable to attend.
The objective assigned to the technical team was to determine whether it could achieve consensus as to how the above questions should be answered. If there was consensus, or at least general agreement on these issues, the second objective was to consider whether it would be helpful to local governments, state agencies, the Growth Management Hearings Boards, and the courts if DCTED were to adopt an administrative rule interpreting the requirements of RCW 36.70A.172(1). To provide public notice and preserve the option to adopt a rule, DCTED filed a Preproposal Statement of Inquiry, pursuant to RCW 34.05.310, on October 7, 1998.
In December 1998, the technical team agreed on a discussion paper summarizing its recommended approach to interpreting the requirements of RCW 36.70A.172(1). There was no consensus on what form a rule should take if one were to be adopted, and there was no formal recommendation from the technical team as to whether a rule should be adopted.
During the first week of January 1999, DCTED sent copies of the discussion paper to interested parties around the state and then held a number of meetings with local government officials and staff, tribal representatives, environmental advocates, representatives of development interests, and others to hear their comments and reactions and to answer questions. Additional meetings were scheduled through the spring and summer of 1999.
II. What Is "Best Available Science"?
The GMA does not answer this question. Furthermore, because DCTED's Minimum Guidelines were adopted before RCW 36.70A.172 was added to the GMA, they provide only indirect assistance.(fn17) Although the Growth Management Hearings Boards have discussed what it means to "include" best available science, they have not seriously attempted to define what constitutes best available science. The Eastern Washington Growth Management Hearings Board has simply used the term without attempting to define it.(fn18) The Central Puget Sound Growth Management Hearings Board has deferred to local governments to determine what information constitutes best available science.(fn19) The Western Washington Growth Management Hearings Board similarly has not attempted to define "science," but, recognizing the limits GMA imposes on local discretion, has discussed the meaning of "best available":
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