Third Harvest's position
Pontius Pilate Theory
The County sends the stream typing question on a non-forest farm parcel to DNR. DNR says in writing that it is not theirs. WDFW has told the County the question is the County's to start. The cost of the loop lands on the landowner.
Third Harvest's opinion, not a legal conclusion.
01 The referral
The County's written responses have consistently referred the typing question to DNR. From the record, as quoted in Third Harvest's October 19, 2026 hearing Appendix, Part 4:
October 9, 2026 (Mr. Coward): "I recommended that the best course of action is to complete a Stream Type Modification process to possibly have the water course reclassified as a drainage ditch." And: "The DNR administers the Stream Type Modification Form that I provided you and which will need to be submitted to start the retyping process."
Third Harvest's October 19, 2026 hearing Appendix, Part 4 October 14, 2026 (Ms. Clark): "As best available science, the County utilizes the DNR's stream type maps to designate streams. If you disagree with the typing of the stream on the property it was suggested that you file a stream modification with the DNR to have the stream retyped on their map."
Third Harvest's October 19, 2026 hearing Appendix, Part 4 October 15, 2026, answer to question 3: "FPA's are a DNR permit, not a County permit. The County has no mechanism to modify stream types."
Third Harvest's October 19, 2026 hearing Appendix, Part 4
02 The answer
DNR Forest Practices replied in writing on October 20, 2026:
“As we discussed, WA DNR Forest Practices does not have jurisdiction on non-forestland water type modifications. WA DNR Forest Practices only updates the Forest Practices Hydro layer when a Non Forestland Water Type Modification form is received and all the required information and concurrences are included in the submittal.”
03 The return
WDFW's August 28, 2026 letter to the County on the draft critical areas code (Planning Commission packet, October 7, 2026, p. 75) states that a water type modification is something "the County would be responsible for initiating when water typing on non-forested lands," and that "Should the County elect to choose a different water type classification system, or retain the default one with DNR, that process should be clearly detailed in a section of municipal code."
Read together, these show the County has authority under its own code to make a determination here, has used that authority on this same drainage before, and has been advised by WDFW that it is the party that initiates retyping on non-forested land. We ask the County to make that determination rather than refer it.
04 The cost
Each agency points to another. The owner is left holding the question, and the cost of answering it.
“That leaves the owner regulated with no agency willing to correct the record.”
Third Harvest's opinion, not a legal conclusion.
In Third Harvest's opinion, a loop in which every agency declines to correct the record, while the owner stays regulated by it, appears to operate as a taking without just compensation. We do not state that it is one.
RCW 36.70A.020(6), the Growth Management Act's property rights goal: “Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions.”
05 The theory
Third Harvest put this theory into the hearing record on October 19, 2026. Both passages below are quoted word for word from Part 11 of the Appendix.
Proposed code language: Seven-Tier Stream Typing System. Third Harvest offers the following as drop-in text that the Department of Community Development could adopt into Title 27, in place of or alongside the water typing in proposed Section 27.12.310(1)(a). It is Third Harvest's proposal, not existing law, and the section number would be assigned by the County. In Third Harvest's view, this section is the County taking responsibility for its own determinations instead of deferring them to another agency: the answer to the Pontius Pilate move described below.
Third Harvest's opinion: the Pontius Pilate move. In Third Harvest's opinion, and not as a legal conclusion, referring this question to DNR is a Pontius Pilate move: the County is washing its hands of a decision that its own code gives it authority to make (CCC 27.12.050), that it made on this same drainage in 2014, and that WDFW has told the County is its to initiate on non-forested land (Part 4). By deferring to another agency instead of exercising authority it has, the County is, in Third Harvest's view, breaking its own RCWs: the duty to include the best available science under RCW 36.70A.172(1), and the duty to protect property rights from arbitrary action under RCW 36.70A.020(6).
Third Harvest's opinion, not a legal conclusion.
06 On site
On site, George Peterson asked Todd, of County staff, whether he was pulling a Pontius Pilate. Todd seemed insulted. George explained what he meant: he felt he was going in a deferral loop.
George's direct statement to County staff on site, in response to being caught in the deferral loop:
“They were the authority, not the other agencies.”
07 Closing
Third Harvest has complied with everything the County has asked of us to this point, and that compliance is documented in the record. It wasn't just that. It was previous consultations, reaching out to other department heads, and trying to better understand the history of why the mapping was coming into play here. All of this led us to this conclusion. We are grateful for the opportunity to use our technology's use case in a different setting than we ever expected, and we hope it will forge future relationships.
Sources: Third Harvest's October 19, 2026 hearing Appendix, Parts 4 and 11; DNR Forest Practices, Olympic Region, written reply to Third Harvest, October 20, 2026; RCW 36.70A.020(6). See also the Predetermination Theory on the Critical Areas page.