No. 26825-6-IIThe Court of Appeals of Washington, Division Two.
Filed: June 21, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County, No. 99-2-00797-0, Hon. Richard A. Strophy, December 1, 2000, Judgment or order under review.
Counsel for Appellant(s), Gillis E. Reavis, Marten Brown Inc., 1201 3rd Ave Ste 320, 1191 2nd Ave, Seattle, WA 98101.
Jennifer T. Barnett, Marten Brown Inc., 421 S Capitol Way Ste 303, Olympia, WA 98501.
Gillis E. Reavis, Marten Brown Inc., 1201 3rd Ave Ste 320, 1191 2nd Ave, Seattle, WA 98101.
Stephan C. Volker, Law Offices of Stephan C. Volker, 436 14th Street, Suite 1300, Oakland, CA 94612.
Counsel for Respondent(s), Jean M. Wilkinson, Assistant Atty General, P.O. Box 40100, Olympia, WA 98504-0100.
Ronald L. Lavigne Jr., Attorney General’s Office-Ecology Div., 2425 Bristol Ct S.W. Fl 2, P.O. Box 40117, Olympia, WA 98504-0117.
Richard W. Elliott, Davis Wright Tremaine, 1800 Bellevue Place, 10500 N.E. Eighth St., Bellevue, WA 98004-4300.
BRIDGEWATER, J.
Marine Environmental Consortium, Inc.; Washington Trout; and Washington Environmental Council, Inc. (appellants[1] ) challenge the Pollution Control Hearings Board’s order affirming, with conditions, the Department of Ecology’s issuance of 12 National Pollutant Discharge Elimination System (NPDES) permits that Cypress Island, Inc. (Cypress[2] ) holds and uses to operate its Atlantic salmon net fish farms. These permits expired in September 2001, and in March 2002, Ecology replaced them with new permits. We hold that the issues are now moot; thus, we dismiss the appeal.
Cypress operates, with NPDES permits, salmon farm facilities in eight locations in Puget Sound. Ecology originally issued the above NPDES permits in September 1996 to Cypress’ predecessors Global Aqua-USA L.L.C. (Global Aqua, later known as Northwest Sea Farms L.L.C.[3] and Scan Am Fish Farms, Inc. (Scan Am). The permits for Cypress’ active net farms have a five-year term, which ended in September 2001. In 2001, they were undergoing Ecology’s renewal process, and in March 2002, Ecology issued new permits.
At its salmon farm facilities, Cypress raises Atlantic salmon in enclosed circular floating net pens that are arranged in clusters and anchored in position using concrete or iron anchors. Cypress obtains Atlantic salmon smolts from freshwater hatcheries and introduces them to their saltwater net pens. The smolts are fed by automated systems and remain in the net pen for about 18 to 22 months until they are harvested.
The main issue on appeal is whether appropriate measures have been taken to prohibit the escape of Atlantic salmon from the net pens. In December 1997, Ecology issued an administrative order in response to Cypress’ predecessor’s accidental release of about 300,000 Atlantic salmon. Appellants allege that over 580,000 Atlantic salmon have escaped in the last decade.
In October 1996, the appellants challenged Cypress’ NPDES and state waste discharge permits. In May 1997, the PCHB issued its first order on summary judgment in which it ruled that Atlantic salmon were a pollutant under the Clean Water Act (CWA), and that while the permits were categorically exempt from the SEPA threshold determination process, Ecology had an independent duty under SEPA to study alternatives when unresolved conflicts concerning alternative uses of available resources existed.
In its second order on summary judgment, issued in October 1997, the PCHB ruled that Ecology could potentially establish all known, available, and reasonable methods of prevention, control, and treatment (AKART) by regulation but that it did not demonstrate that it had made the requisite underlying engineering determinations. The PCHB also ruled that there was a genuine issue of material fact as to whether the permits were consistent with sediment management regulations and whether, and to what extent, the anti-degradation policy applied to beneficial uses of Puget Sound in existence when the permits were issued.
In December 1997, trial commenced before the PCHB and concluded in April 1998. In November 1998, the PCHB issued its final order, ruling that Cypress needed to monitor the release of Atlantic salmon, Cypress needed to experiment with the cultivation of purely female stocks to mitigate the potential risk of reproduction of self-sustaining populations of Atlantic salmon, sediment impact zones needed to be established in the permit, and additional monitoring should occur on a species-specific basis.
However, in 1998, appellants filed a motion for reconsideration of the PCHB’s ruling based on new information from British Columbia that self-sustaining populations of Atlantic salmon had been observed on Vancouver Island in the Tsitika River. In March 1999, the PCHB granted the appellants’ motion for reconsideration and ordered Ecology to consider this new information if Cypress renewed the permits.
Appellants also petitioned for judicial review of the PCHB’s earlier orders; but in 2000, the superior court affirmed the PCHB. By the time we heard the matter in May 2002, Ecology had issued new permits in March 2002.
Since Cypress’ NPDES permits at issue expired on September 18, 2001, and the renewal process requires, among other things, notice and public participation procedures, this case is technically moot. See WAC 173-220-180(4). `A case is technically moot if the court cannot provide the basic relief originally sought,’ Snohomish County v. State, 69 Wn. App. 655, 660, 850 P.2d 546 (1993) (citing In re Swanson, 115 Wn.2d 21, 24, 804 P.2d 1 (1990)), review denied, 123 Wn.2d 1003
(1994), `or can no longer provide effective relief.’ Snohomish, 69 Wn. App. at 660 (citing In re Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983)).
We may decide a moot case if it involves matters of continuing and substantial public interest. Swanson, 115 Wn.2d at 24. In determining whether a sufficient public interest is involved, a court should consider:
(1) the public or private nature of the question presented; (2) the desirability of an authoritative determination that will provide future guidance to public officers; and (3) the likelihood that the question will recur. Dioxin/Organochlorine Ctr. v. Pollution Control Hearings Bd., 131 Wn.2d 345, 351, 932 P.2d 158 (1997).
The relief the appellants seek is a remand of the challenged permits to Ecology with directions to correct the errors in issuing the permits.
We cannot provide that relief because the permits have expired. In addition, the hearings provided for every five years are an acknowledgement of changing knowledge, technology, and regulation, so we would provide little guidance to Ecology based on the issuance of the 1996 permits. We recognize that the matters on appeal are very fact specific. The appellants questioned whether the 1996 permits properly regulated the escape of Atlantic salmon, whether the permits complied with SEPA and Washington’s water quality requirements, and whether the superior court erred in denying appellants’ motions to supplement the record. We cannot determine if these fact-specific questions will reoccur. We requested supplemental briefing, and the parties strongly disagree with each other over mootness. We also recognize the extended time, effort, and expense expended by the parties in this matter, but we note that we were never alerted that this matter merited accelerated review under RAP 18.12. We hold that the matter is moot.
Dismissed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD and QUINN-BRINTNALL, JJ., concur.