CERTIFICATION OF ENROLLMENT
ENGROSSED SUBSTITUTE HOUSE BILL 2039
Chapter 347, Laws of 2024
68th Legislature
2024 Regular Session
ENVIRONMENTAL AND LAND USE APPEALS—VARIOUS PROVISIONS
EFFECTIVE DATE: June 6, 2024—Except for section 2, which takes
effect July 1, 2026.
Passed by the House March 5, 2024 CERTIFICATE
Yeas 72 Nays 24
I, Bernard Dean, Chief Clerk of the
House of Representatives of the
LAURIE JINKINS State of Washington, do hereby
Speaker of the House of certify that the attached is
Representatives ENGROSSED SUBSTITUTE HOUSE BILL
2039 as passed by the House of
Representatives and the Senate on
the dates hereon set forth.
Passed by the Senate February 27,
2024
Yeas 44 Nays 5 BERNARD DEAN
Chief Clerk
DENNY HECK
President of the Senate
Approved March 28, 2024 2:37 PM FILED
March 29, 2024
Secretary of State
JAY INSLEE State of Washington
Governor of the State of Washington
 ENGROSSED SUBSTITUTE HOUSE BILL 2039
AS AMENDED BY THE SENATE
Passed Legislature - 2024 Regular Session
State of Washington 68th Legislature 2024 Regular Session
By House Environment & Energy (originally sponsored by
Representatives Fitzgibbon, Ramel, Reed, Ormsby, Fosse, and Duerr)
READ FIRST TIME 01/26/24.
1 AN ACT Relating to modifying the appeals process for
2 environmental and land use matters; amending RCW 34.05.518,
3 34.05.518, 90.58.180, 70A.230.080, 70A.300.120, 70A.430.070,
4 86.16.081, 70A.500.260, and 36.70C.040; reenacting and amending RCW
5 43.21B.110 and 43.21B.300; adding a new section to chapter 43.21B
6 RCW; repealing RCW 70A.205.145; providing an effective date; and
7 providing an expiration date.
8 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
9 Sec. 1. RCW 34.05.518 and 2021 c 305 s 2 are each amended to
10 read as follows:
11 (1)(a) The final decision of an administrative agency in an
12 adjudicative proceeding under this chapter may be directly reviewed
13 by the court of appeals ((upon)) either: (i) Upon certification by
14 the superior court pursuant to this ((section)) subsection and
15 subsections (2) and (3) of this section; or (ii) if the final
16 decision is from an environmental board as identified in RCW
17 43.21B.005 and the final decision relates to a clean energy project
18 as defined in RCW 43.158.010, pursuant to subsection (4) of this
19 section.
20 ((Transfer of cases pursuant to this section does not require the
21 filing of a motion for discretionary review with the court of
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 1 appeals.)) (b) The superior court may certify cases for transfer to
2 the court of appeals upon finding that:
3 (((a))) (i) All parties have consented to the transfer to the
4 court of appeals and agreed that the judicial review can occur based
5 upon the agency record developed before the administrative body
6 without supplementing the record pursuant to RCW 34.05.562; or
7 (((b))) (ii) One or more of the parties have not consented to the
8 transfer, but the superior court finds that transfer would serve the
9 interest of justice, would not cause substantial prejudice to any
10 party, including any unrepresented party, and further finds that:
11 (((i))) (A) The judicial review can occur based upon the agency
12 record developed before the administrative body without supplementing
13 the record pursuant to RCW 34.05.562; or
14 (((ii))) (B) The superior court has completed any necessary
15 supplementation of the record pursuant to RCW 34.05.562, such that
16 only issues of law remain for determination.
17 (2) If the superior court certifies a final decision of an
18 administrative agency in an adjudicative proceeding, the superior
19 court shall transfer the matter to the court of appeals as a direct
20 appeal.
21 (3) A party contesting a superior court decision granting or
22 denying certification for direct review may file a motion for
23 discretionary review with the court of appeals.
24 (4)(a) For the appeal of a permit related to a clean energy
25 project, as defined in RCW 43.158.010, that is the subject of a final
26 adjudicative decision of an environmental board, as identified in RCW
27 43.21B.005, upon a motion filed by any party to the appeal, the
28 superior court shall certify a case for transfer to the court of
29 appeals upon a finding that:
30 (i) The judicial review can occur based upon the agency record
31 developed before the administrative body without supplementing the
32 record pursuant to RCW 34.05.562; or
33 (ii) The superior court has completed any necessary
34 supplementation of the record pursuant to RCW 34.05.562.
35 (b) If the superior court certifies a final decision of an
36 administrative agency in an adjudicative proceeding, the superior
37 court shall transfer the matter to the court of appeals as a direct
38 appeal.
39 (c) A party contesting a superior court decision granting or
40 denying certification for direct review may file a motion for
p. 2 ESHB 2039.SL
1 discretionary review with the court of appeals. Where a contesting
2 party demonstrates that substantial prejudice would result from
3 direct review by the court of appeals, the court of appeals may
4 remand to the superior court.
5 (5) Transfer of cases pursuant to this section does not require
6 the filing of a motion for discretionary review with the court of
7 appeals.
8 Sec. 2. RCW 34.05.518 and 2021 c 305 s 5 are each amended to
9 read as follows:
10 (1) The final decision of an administrative agency in an
11 adjudicative proceeding under this chapter may be directly reviewed
12 by the court of appeals either (a) upon certification by the superior
13 court pursuant to subsection (2) of this section ((or)); (b) if the
14 final decision is from an environmental board as ((defined in))
15 identified in RCW 43.21B.005 and the final decision relates to a
16 clean energy project as defined in RCW 43.158.010, pursuant to
17 subsection (3) of this section((, upon acceptance by the court of
18 appeals after a certificate of appealability has been filed by the
19 environmental board that rendered the final decision)); or (c) if the
20 final decision is from an environmental board identified in RCW
21 43.21B.005 and the final decision does not relate to a clean energy
22 project as defined in RCW 43.158.010, pursuant to subsection (4) of
23 this section. Transfer of a case pursuant to subsections (3) or (4)
24 of this section does not require the filing of a motion for
25 discretionary review with the court of appeals.
26 (2)(a) For direct review upon certification by the superior
27 court, an application for direct review must be filed with the
28 superior court within thirty days of the filing of the petition for
29 review in superior court. The superior court may certify a case for
30 direct review only if the judicial review is limited to the record of
31 the agency proceeding and the court finds that:
32 (((a))) (i) Fundamental and urgent issues affecting the future
33 administrative process or the public interest are involved which
34 require a prompt determination;
35 (((b))) (ii) Delay in obtaining a final and prompt determination
36 of such issues would be detrimental to any party or the public
37 interest;
38 (((c))) (iii) An appeal to the court of appeals would be likely
39 regardless of the determination in superior court; and
p. 3 ESHB 2039.SL
 1 (((d))) (iv) The appellate court's determination in the
2 proceeding would have significant precedential value.
3 (b) Procedures for certification shall be established by court
4 rule.
5 (3)(a) For the ((purposes of direct review of final decisions of
6 environmental boards, environmental boards include those boards
7 identified in RCW 43.21B.005 and the growth management hearings board
8 as identified in RCW 36.70A.250.
9 (b) An environmental board may issue a certificate of
10 appealability if it finds that delay in obtaining a final and prompt
11 determination of the issues would be detrimental to any party or the
12 public interest and either:
13 (i) Fundamental and urgent statewide or regional issues are
14 raised; or
15 (ii) The proceeding is likely to have significant precedential
16 value.
17 (4) The environmental board shall state in the certificate of
18 appealability which criteria it applied, explain how that criteria
19 was met, and file with the certificate a copy of the final decision.
20 (5) For an appellate court to accept direct review of a final
21 decision of an environmental board, it shall consider the same
22 criteria outlined in subsection (3) of this section.
23 (6) The procedures for direct review of final decisions of
24 environmental boards include:
25 (a) Within thirty days after filing the petition for review with
26 the superior court, a party may file an application for direct review
27 with the superior court and serve the appropriate environmental board
28 and all parties of record. The application shall request the
29 environmental board to file a certificate of appealability.
30 (b) If an issue on review is the jurisdiction of the
31 environmental board, the board may file an application for direct
32 review on that issue.
33 (c) The environmental board shall have thirty days to grant or
34 deny the request for a certificate of appealability and its decision
35 shall be filed with the superior court and served on all parties of
36 record.
37 (d) If a certificate of appealability is issued, the parties
38 shall have fifteen days from the date of service to file a notice of
39 discretionary review in the superior court, and the notice shall
p. 4 ESHB 2039.SL
 1 include a copy of the certificate of appealability and a copy of the
2 final decision.
3 (e) If the appellate court accepts review, the certificate of
4 appealability shall be transmitted to the court of appeals as part of
5 the certified record.
6 (f) If a certificate of appealability is denied, review shall be
7 by the superior court. The superior court's decision may be appealed
8 to the court of appeals.)) appeal of a permit related to a clean
9 energy project, as defined in RCW 43.158.010, that is the subject of
10 a final adjudicative decision of an environmental board, as
11 identified in RCW 43.21B.005, upon a motion filed by any party to the
12 appeal, the superior court shall certify a case for transfer to the
13 court of appeals upon a finding that:
14 (i) The judicial review can occur based upon the agency record
15 developed before the administrative body without supplementing the
16 record pursuant to RCW 34.05.562; or
17 (ii) The superior court has completed any necessary
18 supplementation of the record pursuant to RCW 34.05.562.
19 (b) If the superior court certifies a final decision of an
20 administrative agency in an adjudicative proceeding, the superior
21 court shall transfer the matter to the court of appeals as a direct
22 appeal.
23 (c) A party contesting a superior court decision granting or
24 denying certification for direct review may file a motion for
25 discretionary review with the court of appeals. Where a contesting
26 party demonstrates that substantial prejudice would result from
27 direct review by the court of appeals, the court of appeals may
28 remand to superior court.
29 (4)(a) The final adjudicative decision of an environmental board,
30 as identified in RCW 43.21B.005, that does not relate to a clean
31 energy project as defined in RCW 43.158.010, may be directly reviewed
32 by the court of appeals upon certification by the superior court
33 pursuant to this subsection. The superior court shall certify cases
34 for transfer to the court of appeals upon finding that:
35 (i) All parties have consented to the transfer to the court of
36 appeals and agreed that the judicial review can occur based upon the
37 agency record developed before the administrative body without
38 supplementing the record pursuant to RCW 34.05.562; or
39 (ii) One or more of the parties have not consented to the
40 transfer, but the superior court finds that transfer would serve the
p. 5 ESHB 2039.SL
 1 interest of justice, would not cause substantial prejudice to any
2 party, including any unrepresented party, and further finds that:
3 (A) The judicial review can occur based upon the agency record
4 developed before the administrative body without supplementing the
5 record pursuant to RCW 34.05.562; or
6 (B) The superior court has completed any necessary
7 supplementation of the record pursuant to RCW 34.05.562, such that
8 only issues of law remain for determination.
9 (b) If the superior court certifies a final decision of an
10 administrative agency in an adjudicative proceeding, the superior
11 court shall transfer the matter to the court of appeals as a direct
12 appeal.
13 (c) A party contesting a superior court decision granting or
14 denying certification for direct review may file a motion for
15 discretionary review with the court of appeals. Where a contesting
16 party demonstrates that substantial prejudice would result from
17 direct review by the court of appeals, the court of appeals may
18 remand to the superior court.
19 NEW SECTION. Sec. 3. A new section is added to chapter 43.21B
20 RCW to read as follows:
21 (1) Where multiple permits for the same underlying clean energy
22 project, as defined in RCW 43.158.010, are appealed to one or more of
23 the environmental boards, as identified in RCW 43.21B.005, the
24 presiding officer shall consolidate the appeals for hearing when one
25 or more of the following criteria are met:
26 (a) When appeals for the permits related to the same underlying
27 project are either:
28 (i) Filed within 60 days of each other; or
29 (ii) If the permits are not filed within 60 days of each other
30 and the environmental board issues a stay of the appeal of the permit
31 following the applicant's request. Such a stay must include a stay of
32 the construction of the project pending appeal pursuant to RCW
33 43.21B.320, to allow other anticipated appeals of permits for the
34 same underlying project to be filed with the environmental boards to
35 accommodate consolidation pursuant to this section, but the
36 environmental board may set a deadline after which an appeal may
37 proceed in the absence of other permit appeals in order to ensure
38 efficient resolution of appeals; or
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 1 (b) The presiding officer determines that the following three
2 criteria have been met:
3 (i) Consolidation will expedite disposition of the appeals;
4 (ii) Consolidation will avoid duplication of testimony; and
5 (iii) Consolidation will not prejudice the rights of the parties.
6 (2) When all appeals of individual permits consolidated pursuant
7 to this section are within the jurisdiction of the pollution control
8 hearings board, the pollution control hearings board shall retain
9 jurisdiction over the consolidated matter. When all appeals of
10 individual permits consolidated pursuant to this section are within
11 the jurisdiction of the shorelines hearings board, the shorelines
12 hearings board shall retain jurisdiction over the consolidated
13 matter. When appeals to the pollution control hearings board and
14 appeals to the shorelines hearings board are consolidated pursuant to
15 this section, the following applies:
16 (a) The consolidated appeals must be heard by the pollution
17 control hearings board;
18 (b) The pollution control hearings board must issue its decision
19 on the consolidated appeal within 240 days, which must be measured
20 from the date that the last of the consolidated appeals was filed;
21 and
22 (c) The time period in (b) of this subsection may be extended 60
23 days on a motion from a party or by the pollution control hearings
24 board upon a finding of good cause. The time period in (b) of this
25 subsection may also be waived if agreed to by all parties.
26 Sec. 4. RCW 90.58.180 and 2011 c 277 s 4 are each amended to
27 read as follows:
28 (1)(a) Any person aggrieved by the granting, denying, or
29 rescinding of a permit on shorelines of the state pursuant to RCW
30 90.58.140 may seek review from the shorelines hearings board by
31 filing a petition for review within ((twenty-one)) 21 days