WSR 99-07-052


[ Filed March 15, 1999, 4:24 p.m. ]

March 15, 1999

Pacific Topsoils, Inc.

14002 35th Avenue SE

Bothell, Washington 98012-4699

Dear Sir:

On January 4, 1999, the Department of Ecology (the "Department") denied your petition requesting that it repeal its rule that amended Chapter 173-20-640 of the Washington Administrative Code to include Thomas Lake as a lake under the purview of the Shoreline Management Act, Chapter 90.58 RCW.

By a petition dated November 11, 1998 and received by this office on February 2, 1999, you timely appealed the Department's denial of your petition to the Governor as authorized by RCW 34.05.330. Your petition seeks to have the Governor direct the Department to repeal the rule that added Thomas Lake to WAC 173-20-640.

On March 11, 1999, in Webster and Barringer v. Ecology, Case No. SHB 98-29, the Shorelines Hearings Board (the "Board") issued a Modified Final Findings of Fact, Conclusions of Law and Order that renders your appeal to the Governor moot.

In its ruling, the Board concluded that a final determination of whether Thomas Lake is one of a size that should be included in WAC 173-20-640 should be based on the best science. The Board ordered that the Department's rule amendment adding Thomas Lake to WAC 173-20-640 is invalid, and remanded the matter to the Department to investigate and review all relevant information and, if necessary, do further site investigations to locate the ordinary high water mark of Thomas Lake; and to adopt a regulation that is consistent with the Board's decision.

Because the Board has invalidated the rule you sought to have repealed, your appeal is moot. I encourage you to work with the Department to facilitate its access to all areas surrounding Thomas Lake so that it may efficiently complete its site investigations and locate the ordinary high water mark. Please direct any questions on this matter to my counsel, Everett Billingslea, at 360-753-6780.


Gary Locke


Washington State Code Reviser's Office