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BEFORE THE EASTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD CITIZENS FOR GOOD GOVERNANCE,

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Petitioner,

Case No. 09-1-0013

FINAL DECISION AND ORDER

WALLA WALLA COUNTY,

Respondent,

And

FUTUREWISE,

Intervenor.

I. SYNOPSIS

On August 31,2009, the Walla Walla County Board of County Commissioners passed Ordinance 372 adopting Critical Areas Regulations. Citizens for Good Governance filed a Petition for Review, and Futurewise intervened in this case. The Hearing on the Merits occurred on March 24, 2010. Petitioner and Intervenor alleged that Walla Walla County failed to comply with the requirements of RCW 36.70A.170, .172 and .060 for failure to designate and to protect the Gravel Aquifer as "areas with a critical recharging effect on aquifers used for potable water" and for failure to adequately protect those aquifer recharge areas which were designated. The Eastern Washington Growth Management Hearings Board (Board) finds and concludes that Walla Walla County failed to comply with the Growth Management Act (GMA) when it enacted Ordinance 372. Ordinance 372 is, therefore, remanded to Walla Walla County, and the County shall take further actions to come into compliance with the Growth Management Act.

II. BURDEN OF PROOF

For the purposes of board review of the comprehensive plans and development regulations adopted by local government, the GMA establishes three major precepts: a presumption of

FINAL DECISION AND ORDER Eastern Washington

Case No. 09-1-0013 Growth Mana~ement Hearings Board

May 3,2010 319 i Avenue SE, Suite 103

Page 1 of 12 P.O. Box 40953

Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

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Eastern Washington Growth Mana~ement Hearings Board 319 r Avenue SE, Suite 103 P.O. Box 40953 Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

validity; a "clearly erroneous" standard of review; and a requirement of deference to the decisions of local government.

Pursuant to RCW 36.70A.320(1), comprehensive plans, development regulations and amendments to them are presumed valid upon adoption:

Except as provided in subsection (5) of this section, comprehensive plans and development regulations, and amendments thereto, adopted under this chapter are presumed valid upon adoption.

The statute further provides that the standard of review is whether the challenged enactments are clearly erroneous: 1

The board shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of this chapter.

In order to find the County's action clearly erroneous, the Board must be "left with the firm and definite conviction that a mistake has been made."

Within the framework of state goals and requirements, the boards must grant deference to local governments in how they plan for growth.3

In recognition of the broad range of discretion that may be exercised by counties and cities in how they plan for growth, consistent with the requirements and goals of this chapter, the legislature intends for the boards to grant deference to the counties and cities in how they plan for growth, consistent with the requirements and goals of this chapter. Local comprehensive plans and development regulations require counties and cities to balance priorities and options for action in full consideration of local circumstances. The legislature finds that while this chapter requires local planning to take place within a framework of state goals and requirements, the ultimate burden and responsibility for planning, harmonizing the planning goals of this chapter, and implementing a county's or city's future rests with that community.

The burden is on Petitioners to overcome the presumption of validity and demonstrate that any action taken by the County is clearly erroneous in light of the goals and requirements of

1 RCW 36.70A.320(3)

2 DeptofEcologyv. PUD1, 121 Wn2d 179,201 (1993). 3 RCW 36.70A.3201

FINAL DECISION AND ORDER Case No. 09-1-0013

May 3,2010

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1 Ch. 36.70A RCW (the Growth Management Act).4 Where not clearly erroneous, and thus 2 within the framework of state goals and requirements, the planning choices of local

3 government must be granted deference.

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III. ISSUE TO BE DISCUSSED

1. Is Walla Walla County out of compliance with the requirements of RCW 36.70A170, .172 and .060 for failure to designate and to protect the Gravel Aquifer and the failure to adequately protect those aquifer recharge areas that are designated?

IV. BOARD ANALYSIS AND DISCUSSION

RCW 36.70A170(1) requires each county and each city to designate "critical areas." RCW 36.70A030(5) defines "critical areas" as including 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.

RCW 36.70A060(2) provides that each county and city shall adopt development regulations that protect designated critical areas. In designating and protecting critical areas, the GMA requires that "counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas. In addition, counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries."

Evidence of the best available science (BAS) must be included in the record and must be considered substantively in the development of critical areas policies and requlations." "Although BAS does not require the use of a particular methodology, at a minimum BAS

4 RCW 36.70A.320(2) 5 RCW 36.70A.172(1).

6 Honesty in Envtl. Analysis & Legislation (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wn. App. 522, 532, 979 P.2d 864 (1999). FINAL DECISION AND ORDER

Case No. 09-1-0013

May 3,2010

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Eastern Washington Growth Mana~ement Hearings Board 319 i Avenue SE, Suite 103 P.O. Box 40953 Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

1 requires the use of a scientific methodology." Although a county need not develop scientific

2 information through its own means, it must rely on scientific information and must analyze

3 that information using a reasoned process. 8

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If a 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 not require a county to follow BAS; rather it is required to "include" BAS in its record. A county may depart from BAS if it provides a reasoned justification for such departure. 10

RCW 36.70A.170(2) provides that in making critical areas designations, counties and cities shall consider the guidelines established by the Department of Commerce pursuant to RCW 36.70A.050(1). These are "minimum guidelines" that apply to all jurisdictions "to guide the classification" of critical areas." WAC 365-190-08012 provides, in part, the following guidelines for designating critical aquifer recharge areas:

Potable water is an essential life sustaining element. Much of Washington's drinking water comes from ground water supplies. Once ground water is contaminated it is difficult, costly, and sometimes impossible to clean up. Preventing contamination is necessary to avoid exorbitant costs, hardships, and potential physical harm to people.

The quality of ground water in an aquifer is inextricably linked to its recharge area. Few studies have been done on aquifers and their recharge areas in Washington state. In the cases in which aquifers and their recharge areas have been studied, affected counties and cities should use this information as the base for classifying and designating these areas.

7 Ferry County v. Concerned Friends of Ferry County, 155 Wn. 2d. 837 (2005). 8 Id. at 836-837.

91d. at 836.

10 Swinomish Tribe v. WWGMHB, 161 Wn.2d 415,430-431. 11 RCW 36.70A050.

12 WAC 365-190-080 was amended effective February 19, 2010, and the guidelines on designating critical aquifer recharge areas were moved to new WAC 365-190-100. Emphasis added to excerpted former WAC 365-190-080.

FINAL DECISION AND ORDER Case No. 09-1-0013 May3,2010

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Eastern Washington Growth Mana~ement Hearings Board 3197' Avenue SE, Suite 103 P.O. Box 40953 Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

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Where no specific studies have been done, counties and cities may use existing soil and surficial geologic information to determine where recharge areas are. To determine the threat to ground water quality, existing land use activities and their potential to lead to contamination should be evaluated.

Counties and cities shall classify recharge areas for aquifers according to the vulnerability of the aquifer. Vulnerability is the combined effect of hydrogeological susceptibility to contamination and the contamination loading potential. High vulnerability is indicated by land uses that contribute contamination that may degrade ground water, and hydrogeologic conditions that facilitate degradation. Low vulnerability is indicated by land uses that do not contribute contaminants that will degrade ground water, and by hydrogeologic conditions that do not facilitate degradation ....

In order to protect public health and prevent harm to people from drinking contaminated water, the GMA requires the designation and protection of Critical Aquifer Recharge Areas (CARAs). Land areas must be designated as CARAs based upon the aquifer's vulnerability to contamination from land use activities. This necessarily involves some form of risk analysis to determine the threat to ground water quality from land use activities in a particular area.

In Walla Walla County, the shallow Gravel Aquifer serves as a primary water source for thousands of people." Walla Walla County's Best Available Science (BAS) documentation states that "all groundwater is potentially vulnerable to contamination," and "problems or risk to contamination vary spatially and not all regions are equally vulnerable."!" Ordinance No. 372 states that the Board of County Commissioners "concurs with the Best Available Science Document, which notes that the entire Gravel Aquifer is not designated as a Critical Aquifer Recharge Area, but that it is an area of concern that should be monltored.':" The BAS Review also indicates that the shallow Gravel Aquifer has greater susceptibility to

13 John Warinner, Strategic Plan: Restoring and Seasonally Recharging the Shallow Gravel Aquifer & SpringFed Streams of the Walla Walla Watershed (June 2006), page 3-1 - Futurewise's Hearing on the Merits Brief, Attachment IR 75.

14 Walla Walla County Critical Areas Ordinance Best Available Science Review, page 7-7 (05/21/2008)-Response Brief of Walla Walla County, Exhibit 101.

15 Ordinance No. 372, page 5 -- Response Brief of Walla Walla County, Exhibit 100. FINAL DECISION AND ORDER Case No. 09-1-0013

May 3,2010

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Eastern Washington Growth Mana~ement Hearings Board 319 r Avenue SE, Suite 103 P.O. Box 40953 Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

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1 contamination than the deeper Basalt Aquifer, due to lower permeability of basalt 2 formations."

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"The Gravel Aquifer receives recharge from stream and canal leakage and infiltration of irrigation water and there is a high level of hydraulic connectivity between the gravel aquifer and the surface streams.:" Based on these considerations, the BAS Report defines critical aquifer recharge areas as the "1 O-year time of travel as defined in the wellhead protection plans submitted by communities and water providers to Department of Health." The CARA delineated by 10-year capture zones is shown on a map labeled Figure 7.6_1.18

However, the adopted Critical Area Regulations state that the CARA maps "are a reference and do not provide a final critical area deslqnatlon.?" These adopted regulations reiterate that CARAs in Walla Walla County are designated using pre-existing "Wellhead Protection Areas" established under federal and state laws.2o Moreover, the "State of Washington wellhead protection regulations exclude individual domestic wells and well systems that do not meet the definition of public water supplies.v"

The record reveals that Walla Walla County relied exclusively upon pre-existing "Wellhead Protection Areas" as satisfying the GMA requirement to designate Critical Aquifer Recharge Areas. This approach is not supported by the science. The scientific information does not indicate that using wellhead protection areas alone is sufficient to protect the large Gravel Aquifer.22 Individual wellhead protection areas may protect some wells that constitute

16 Walla Walla County Critical Areas Ordinance Best Available Science Review, page 7-7 (05/21/2008) -Response Brief of Walla Walla County, Exhibit 101.

171d.

18 Id. Appendix A.

19 Ordinance No. 372, Exhibit A, page 42 of 101 -- Response Brief of Walla Walla County, Exhibit 100.

20 The Board notes that designations made under other federal and state laws do not equate to compliance with the GMA, which has its own distinctive requirements.

211d.

22 The Washington State Department of Ecology Critical Aquifer Recharge Areas Guidance Document (Jan. 2005) indicates that wellhead protection zone plans and maps may provide information that is useful in locating one category of a CARA; however, there are multiple sources of scientific information regarding

FINAL DECISION AND ORDER Eastern Washington

Case No. 09-1-0013 Growth Mana~ement Hearings Board

May 3,2010 319 r Avenue SE, Suite 103

Page 6 of 12 P.O. Box 40953

Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

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regulated public water systems, but there is no evidence in the record that this approach protects the large number of unregulated individual or exempt wells, nor is there any evidence that this approach is sufficient to protect the larger Gravel Aquifer which underlies a land area of about 190 square miles.23

How do a few small wellhead protection areas protect the much larger, shallow Gravel Aquifer from possible contamination by various land use activities, including known hazardous substance sites located just above the shallow aquifer? The BAS record does not show a correlation between wellhead protection and Gravel Aquifer protection.

A key unanswered question in the present case is this: Where are the specific recharge areas for the shallow Gravel Aquifer? The BAS Review does not identify specific recharge areas, other than the following sentence: "Mill Creek loses water to the gravel aquifer as it flows out of the Blue Mountains.,,24 The record does not reflect what, if any, portions of the Mill Creek area are designated as a CARA for the Gravel Aquifer. A reference to seasonal water level fluctuations in the Walla Walla River alluvial fan does not state whether this is a gravel aquifer recharge area, as opposed to a reverse base-flow-to-stream area." The record does not reflect what, if any, portions of the Walla Walla River area should be designated as a CARA for the Gravel Aquifer.

The WAC 365-190-080 guidelines state that to determine the location of aquifer recharge areas, counties may using existing studies or may use existing soil and surficial geologic information." The record does not show that Walla Walla County made any such

CARAs, and multiple ways to classify CARAs. Response Brief of Walla Walla County, Exhibit 75, pages 12, 22, and 28. Thus, wellhead protection areas represent only one part of a multi-dimensional CARA system. 23 Walla Walla County Critical Areas Ordinance Best Available Science Review, page 7-1 (05/21/2008) -Response Brief of Walla Walla County, Exhibit 101.

241d. at page 7-2.

251d.

26 Existing studies in this record pertaining to the Gravel Aquifer include MacNish, Myers and Barker, Appraisal of Groundwater Availability and Management Projections, Walla Walla Basin, Washington and Oregon, 1973; Barker and MacNish, Digital Simulation of a Gravel Aquifer System Walla Walla Basin, Washington and Oregon, 1976; and Bower, Estimating recharge volumes for stabilizing and replenishing the Walla Wall River

FINAL DECISION AND ORDER Eastern Washington

Case No. 09-1-0013 Growth Mana~ement Hearings Board

May 3,2010 3197 Avenue SE, Suite 103

Page 7 of12 P.O. Box 40953

Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

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determinations as to the Gravel Aquifer recharge areas. In the absence of basic locational information on specific recharge areas, the County cannot effectively determine which areas are "critical" to preventing adverse impacts to the aquifer.

Moreover, the record does not show a consideration of the WAC guidelines which prescribe (1) an evaluation of the threat of ground water contamination from existing land use activities, and (2) the designation of aquifer specific recharge areas based upon vulnerability of the aquifer to contamination. The County did identify "environmental cleanup" sites overlying the aquifer, but the County failed to analyze the risk that hazardous substances could migrate from these sites and contaminate the shallow aquifer." In defining CARAs as pre-existing wellhead protection areas, the County did not show any relationship between those specific wellhead sites and the vulnerability of the aquifer to contamination.

Regarding ground water quality, the County's BAS Review states:

Use and disposal of chemicals is the principal cause of adverse impacts to ground water quality from human activities. Leaks and spills of chemical products and hazardous residues from manufacturing operations, storage tanks, shipping containers, and waste disposal areas are major point sources of contamination. On-site septic systems that are improperly installed or maintained are also potential point sources of ground water contamination. Non-point sources of ground water contamination include runoff from agricultural areas, field application of fertilizers and manure at greater than agronomic rates, concentrated agricultural feeding operations, paved and unpaved areas used by vehicles or used for chemical storage, runoff from residential and business uses, and areas where airborne dispersion of hazardous chemicals has contaminated soils.28

Basin's Shallow Aquifer System, Walla Walla Basin Watershed Council (December 4, 2007). Response Brief of Walla Walla County, Exhibits 201, 202, and 203, respectively.

27 Ordinance No. 372, pages 6-7 -- Response Brief of Walla Walla County, Exhibit 100.

28 Walla Walla County Critical Areas Ordinance Best Available Science Review, page 7-6 (05/21/2008) -Response Brief of Walla Walla County, Exhibit 101. The Department of Ecology Toxics Cleanup Program has determined that groundwater has become contaminated with arsenic, cadmium, iron, lead, zinc, nitrate, sulfate, and hexavalent chromium at the Schwerin Concaves Site just east of the City of Walla Walla. Groundwater in the area is used for irrigation, drinking water, and recreation. Department of Ecology Publication No. 08-09-029 - Futurewise's Hearing on the Merits Brief, Attachment IR 75. FINAL DECISION AND ORDER Case No. 09-1-0013 May 3,2010 Page 8 of 12

Eastern Washington Growth Mana~ement Hearings Board 319 i Avenue SE, Suite 103 P.O. Box 40953 Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

1 But this BAS Review failed to analyze adverse impacts to groundwater from human 2 activities within delineated recharge areas for the Gravel Aquifer.

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In order to protect public health and the environment," and to prevent contamination of potable drinking water supplies, the GMA requires the County to analyze the risk that existing land use activities could lead to ground water contamination. Such a risk analysis forms the basis for designation and protection of specific, science-based CARAs. For example, the County did find that there were six contaminated sites listed by the Department of Ecology, and one site listed by EPA with releases "transferred offsite."30 An undisclosed number of wells in the County have become contaminated from fecal coliform and nitrates." However, the record does not reflect a consideration of the extent to which these potential groundwater contamination sources might affect the shallow Gravel Aquifer or its recharge areas.

The findings in Ordinance 372 contain generalized statements about the vulnerability of the gravel aquifer to contamination." but there is no localized or area-specific analysis in the record showing which specific land areas are critical recharge areas based on aquifer vulnerability to contamination from those specific land areas. For example, in referring to the Vadose Zone, the Ordinance 372 findings state that "the permeability and contaminant attenuation properties of the gravel aquifer cannot be generalized, with shallow gravels having less attenuation properties, and the deeper sand, silt and clay having more attenuation properties.r" But there is an absence of location-specific information in the BAS record to support this finding. The County failed to analyze permeability and contaminant attenuation characteristics for identified recharge areas as envisioned in WAC 365-190- 100(3). Similarly, the County did not analyze contaminant loading potential for urban

29 See RCW 36.70A020(10).

30 Ordinance No. 372, page 6 -- Response Brief of Walla Walla County, Exhibit 100. 31 Id. at 7.

32 Id. at 5-7. 33 Id. at 6.

FINAL DECISION AND ORDER Case No. 09-1-0013

May 3,2010

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Eastern Washington Growth Mana~ement Hearings Board 319 i Avenue SE, Suite 103 P.O. Box 40953 Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

1 stormwaterdischarges or irrigation return flows into the gravel aquifer from identified 2 recharge areas.

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Thus, the County did not use best available scientific information about aquifer contamination threats to inform its CARA designation process, nor did it use a reasoned process to analyze best available scientific information regarding identified recharge areas for the Gravel Aquifer.

Because Walla Walla County has not properly designated CARAs for the Gravel Aquifer, it has not followed the GMA's requirement to protect the functions and values of this type of critical area. There is no legal or scientific basis of support for the County's assertion that stream buffers protect waters that have not been properly designated as a CARA Similarly, the County's stated reliance on federal, state, and local clean water laws to satisfy the GMA's critical area protection requirements is not supported by BAS, nor is it supported by any GMA provision."

Petitioner and Intervenor argue that the Gravel Aquifer should be designated as a CARA and protected, but the GMA does not necessarily require designation of the entire 190 square mile aquifer. Rather, the GMA requires designation and protection of "areas with a critical recharging effect on aquifers used for potable water.,,35 The extent of these designated critical recharge areas, as distinct from the underlying aquifer itself, is determined through a substantive consideration of Best Available Science, which has not yet occurred in Walla Walla County.

Thus, the Board determines that the Ordinance 372 findings relating to CARAs are not supported by substantial evidence in the record. The Board further determines that the County failed to consider the critical area designation guidelines in former WAC 365-190- 080, now WAC 365-190-100. The Board also determines that the County failed to include

34 See County findings of fact, Id. at 6.

35 RCW 36.70A.030(5)(b); RCW 36.70A.170(1). FINAL DECISION AND ORDER

Case No. 09-1-0013

May 3,2010

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Eastern Washington Growth Mana~ement Hearings Board 319 r Avenue SE, Suite 103 P.O. Box 40953 Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

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15 The following schedule for compliance, briefing and hearing shall apply:

16 17 18 19 20 21 22 23 24 Entered this 3rd day of May, 2010. 25

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1 and substantively consider Best Available Science in designating and protecting the

2 functions and values of areas with a critical recharging effect on aquifers used for potable 3 water.

4

V. ORDER

Based on the foregoing, the Board finds and concludes that Walla Walla County failed to comply with RCW 36.70A060(2), RCW 36.70A170(1), and RCW 36.70A170(2) of the

Growth Management Act when it enacted Ordinance 372. Walla Walla County's enactment

of Ordinance 372 was clearly erroneous in view of the entire record before the Board and in light of the goals and requirements of the GMA Ordinance 372 is remanded to Walla Walla

County, and the County shall take further actions to come into compliance with the Growth

Management Act consistent with this Final Decision and Order.

Item Date Due
Compliance Due October 29,2010
Compliance Report and Index to Compliance Record November 12,2010
Objections to a Finding of Compliance November 29,2010
Response to Objections December 8, 2010
Compliance Hearing December 17,2010
Call 360407-3780 pin 235947# 10:00 a.m. ~_-'-L p-ML..

Raymond L. Paolell~,I""'!!!I'Io&i;:l

Joyc9Ulliken, Board Member

FINAL DECISION AND ORDER Case No. 09-1-0013

May 3, 2010

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Pursuant to RCW 36.70A.300 this is a final order of the Board.

Reconsideration. Pursuant to WAC 242-02-832, you have ten (10) days from the mailing of this Order to file a petition for reconsideration. Petitions for reconsideration shall follow the format set out in WAC 242-02-832. The original and three copies of the petition for reconsideration, together with any argument in support thereof, should be filed by mailing, faxing or delivering the document directly to the Board, with a copy to all other parties of record and their representatives. Filing means actual receipt of the document at the Board office. RCW 34.05.010(6), WAC 242-02-330. The filing of a petition for reconsideration is not a prerequisite for filing a petition for judicial review.

Judicial Review. Any party aggrieved by a final decision of the Board may appeal the decision to superior court as provided by RCW 36.70A.300(5). Proceedings for judicial review may be instituted by filing a petition in superior court according to the procedures specified in chapter 34.05 RCW, Part V, Judicial Review and Civil

Enforcement. The petition for judicial review of this Order shall be filed with the appropriate court and served on the Board, the Office of the Attorney General, and all parties within thirty days after service of the final order, as provided in RCW 34.05.542. Service on the Board may be accomplished in person, by fax or by mail, but service on the Board means actual receipt of the document at the Board office within thirty days after service of the final order.

Service. This Order was served on you the day it was deposited in the United States mail. RCW 34.05.010(19).

FINAL DECISION AND ORDER Case No. 09-1-0013

May 3,2010

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Eastern Washington Growth Mana~ement Hearings Board 319 r Avenue SE, Suite 103 P.O. Box 40953 Olympia, Washington 98504-0953 Phone: 360-586-0260 Fax: 360-664-8975

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