Board of Health hears appeal over septic permit; written decision due Sept. 24

Thurston County Board of Health members on Sept. 9 heard three hours of oral argument in an appeal by Matthew and Madeline McCullough challenging a November 2024 Environmental Health approval of a septic system repair permit and a subsequent hearing officer decision that denied the McCulloughs’ initial appeal.

The McCulloughs’ attorney, Michael Ray of the firm Brooklyn & Newman, told the board that Thurston County Environmental Health has been issuing replacement septic permits without required review under the county Critical Areas Ordinance and the Shoreline Master Program. "Thurston Health has been issuing permits to install replacement septic systems without the required review under the critical areas ordinance," Ray said, arguing the hearing officer incorrectly concluded she lacked authority to deny a permit based on noncompliance with those land‑use protections.

Ray framed the dispute in two parts: whether the hearing officer had authority to deny an on‑site sewage system (OSS) application for noncompliance with other laws and, if so, whether land‑use review under the Critical Areas Ordinance and Shoreline Master Program must occur before an installation permit is issued. Ray cited RCW 70.05.074 and provisions of the county sanitary code, saying both authorize denial when a proposed OSS conflicts with other applicable laws.

Deputy Prosecuting Attorney Seth Dickey, representing Environmental Health, countered that the statutory language Ray cited describes conditions for when a denial is issued but does not require the health officer to independently perform the county’s land‑use review. "Environmental health is not the entity ... that routes these applications," Dickey said. He said routing and land‑use review are performed by CPED (the county’s planning department) and, if a CPED determination were necessary, the appropriate remedy would be to file a complaint with CPED so that department could investigate.

The parties also debated whether the permit at issue was a repair or an expansion — a distinction tied in the sanitary code to whether the permitted work increases wastewater flow (for example, by adding bedrooms). Dickey told the board the sanitary code treats an expansion as an increase in flow and emphasized that a system’s increased capacity alone does not equal increased flow.

Ray said a county practice of treating many replacement systems as not requiring land‑use review risks cumulative impacts: "I can't imagine how many of those systems were oversized," he said, describing a concern that applicants or installers might oversize systems and clear more vegetation in sensitive areas. He also said planning review could reveal Shoreline Master Program constraints — for example, that septic tanks may be prohibited in certain shoreline conservancy designations.

Board members had the opportunity to ask questions of both presenters during and after argument. No party offered new evidence during oral argument; the chair reminded parties that argument must be limited to the record.

At the hearing’s close, Board Chair Dr. Beth Harvey told attendees the board will issue its written decision on or before Sept. 24, 2025. The board then recessed to executive session to consider the arguments.

The record before the board includes: the November 11, 2024 Environmental Health permit approval; the hearing officer’s May 2, 2025 decision denying the McCulloughs’ appeal; and the McCulloughs’ May 19, 2025 appeal of that decision to the Board of Health. The contested legal questions flagged in oral argument include the scope of the health officer’s denial authority under RCW 70.05.074 and corresponding sanitary‑code provisions, whether land‑use review under the Critical Areas Ordinance and Shoreline Master Program applies to the permitted repair, and what remedies and processes are available if CPED determines a violation of land‑use rules.

The board did not issue a ruling at the meeting; parties and interested members of the public will receive the written decision when it is issued by Sept. 24.