¶39 (dissenting) — Glossing over genuine issues of material fact, the majority rubber stamps the Pollution Control Hearings Board’s (Board) decision and overturns the trial court’s grant of summary judgment. The Department of Ecology’s (Ecology) order is extremely burdensome and may “take” seven acres of this farm, as the trial court held. The order here converts land that was homesteaded in the 1800s, which has been continuously used for agricultural purposes since that time, into non-agricultural property. The order also may force a rancher, whose retirement is tied up in his small farming and ranching operation, to spend tens of thousands of dollars to erect the very fence that will keep him from using a significant portion of his property.6,7 Ignoring the obvious *245stakes, disputed facts, and a state constitution that provides strong protection to private property rights, the majority denies Joseph Lemire his judgment from a court with unquestioned jurisdiction. Because the majority disregards constitutionally protected private property rights and bases its decision on credibility judgments and factual findings, the law requires us to return the case to the trial court. I therefore dissent. On other issues such as Ecology’s statutory authority, I have assumed the majority rulings.
Procedural History
¶40 Ecology issued its order in 2009. Lemire challenged the order before the Board. Ecology moved for summary judgment, which the Board granted.
¶41 Lemire properly appealed the Board’s decision to the Columbia County Superior Court, Judge William D. Acey presiding. After a thorough review of the administrative record, Judge Acey reversed the summary judgment determination, invalidated the agency order for lack of evidence, and ruled that the order affected an unconstitutional taking. Given the record, Judge Acey was especially troubled by the fact that Lemire “never had his day in court.” Verbatim Report of Proceedings at 16. Ecology appealed to Division Three of the Court of Appeals, which certified the case to this court.
Analysis
I. There Are Genuine Issues of Material Fact That Preclude Summary Judgment
¶42 In an appeal under the Administrative Procedure Act (APA), chapter 34.05 RCW, we are to confine our review of disputed issues of fact to the administrative record. RCW 34.05.558. Additionally, “where the original administrative decision was on summary judgment, [we] must overlay the *246APA standard of review with the summary judgment standard.” Verizon Nw., Inc. v. Emp’t Sec. Dep’t, 164 Wn.2d 909, 916, 194 P.3d 255 (2008). Consequently, in an appeal of an administrative grant of summary judgment, we are to view the facts in the administrative record in the light most favorable to the nonmoving party and review conclusions of law de novo. Id. Summary judgment is appropriate only “where the undisputed facts entitle the moving party to judgment as a matter of law.” Id.
¶43 The operative statutes in this case, RCW 90.48.080 and RCW 90.48.120, make it illegal to pollute and give Ecology the authority to initiate an enforcement action against someone who “creates a substantial potential to violate” the State’s pollution laws.8 RCW 90.48.120(1). Presumably, all landowners could potentially violate the state’s pollution laws, so when Ecology has not proved a direct violation but still wants to initiate an enforcement action, the key word in the statute is “substantial.” Id. The dictionary defines “substantial” as “having a solid or firm foundation” or being “soundly based.” Webster’s Third New International Dictionary 2280 (2002). Here, the key to the Board’s erroneous grant of summary judgment was its finding that there were “no materially disputed facts about the potential for discharge of organic material to state waters . . . .” Admin. Record (AR) (Order Granting Mot. To Dismiss & Mot. for Summ. J.) at 12. The Board’s omission of the word “substantial” is telling of its mentality.
¶44 The Board and the majority myopically focus on the allegations in Ecology’s declaration. Disregarding the legally required standard of review for summary judgment, the Board and the majority assumed that Ecology’s allega*247tions are gospel truth9 and summarily dismissed the statements in Lemire’s declaration that counter Ecology’s claims as “conclusory allegations.” AR (Order Granting Mot. To Dismiss & Mot. for Summ. J.) at 13; majority at 236. An examination of the allegations and Lemire’s corresponding responses will illustrate my point.
¶45 After eight sporadic site visits spread out over a six-year period, visiting mostly during the winter months and never in the summer or fall10 and observing the property only from a distance, Ecology makes a number of allegations about the conditions on the Lemire property. First, Ecology claims there is overgrazing of the riparian corridor and, consequently, bare ground along the creek. AR (Decl. of Chad Atkins at 3). Lemire responds that the absence of vegetative growth along the creek in the winter and early spring months (when Ecology made its observations) is due to the fact that the creek dries up sometime between July and December. AR (Decl. of Lemire) at 1. Moreover, Lemire claims that the large bluff on the south side of the property casts a shadow over the creek during these months so that little to no direct sunlight touches the creek, leaving the banks covered in growth-inhibiting frost. Id. Lemire asserts that there is in fact a healthy five to seven inches of grass that grows along the creek in the *248late spring. AR (Notice of Appeal) at 2. Moreover, Lemire claims he uses the “best management practice” of flash grazing (a very limited grazing regime) in order to protect riparian vegetation. Id. If a parcel is overgrazed, it does not have enough vegetative cover. Was Lemire’s property overgrazed or just experiencing a normal lack of vegetative growth during the colder winter and early spring?
¶46 Second, Ecology claims that Atkins observed manure in the stream corridor. AR (Decl. of Chad Atkins) at 3. Lemire counters that what Atkins saw (again, from a distance) were gopher mounds. AR (Notice of Appeal) at 1. Lemire asserts that the cattle are not even permitted access to the creek from late November through the runoff period in April (the time period in which most of Atkins’ visits and observations took place) to protect them from flash flooding caused by heavy rains and snow melt. AR (Deck of Lemire) at 5. So, the obvious factual issue arises: Was a polluting substance seen by Atkins?
¶47 Third, Ecology claims there is inadequate woody vegetation along the stream banks. AR (Deck of Chad Atkins) at 3. Lemire maintains that there are a variety of trees of various species growing along the creek. AR (Deck of Lemire) at 2. However, Lemire states that when he originally purchased the property in 1991, there was little brush or woody species. Id. Also, Lemire testifies that some of the trees have recently been taken by the local beaver population as well as by fire. Id. Lemire testifies that cattle do not damage the bushes and trees because they have ample room to maneuver. Id. Lemire also cites studies, including the Northwest Power and Conservation Council’s Tucannon Subbasin Plan, that he argues show that the “shrub-steppe” species commonly found on the Columbia Plateau do not grow in the Tucannon Subbasin, where his farm is located. Id. This record does not establish whether *249climate and nature or Lemire’s cattle cause the alleged “inadequacy”11 of woody vegetation along the creek.
¶48 Fourth, Ecology claims that there are trampled stream banks, cattle trails across the creek, and erosion, all as a result of cattle in the riparian corridor. AR (Decl. of Chad Atkins) at 3. Lemire says that any erosion is due to natural processes (erosion is how streams are formed in the first place), especially during the wintertime when vegetation is naturally sparse.12 AR (Notice of Appeal) at 2. Moreover, during the colder months, Lemire says that the ground along the creek bank is naturally distorted by ice and frost formation, which is known to cause soil movement. Id.
¶49 Lemire concedes that at an earlier time he discovered a few places where the cattle were breaking down a higher bank and that he solved that problem by installing drift fencing in each such location. AR (Decl. of Lemire) at 5. Additionally, Lemire contends that the cattle do not linger in the riparian corridor but mostly cross the creek to get to food in the other pasturelands (that are otherwise inaccessible) and that when they do cross they use the same small trails. Id. at 1, 5. In an assertion undisputed by Ecology, Lemire notes the banks of the creek are mostly 10-12 feet high, so the cattle could not walk on the banks or cross the creek at those places. Id. Given that Ecology is now stating it would be acceptable for Lemire to install gates in the fence to allow his cattle to access otherwise inaccessible pastureland, the type of erosion Ecology claims it is seeking to prevent cannot be caused by cattle periodically crossing from one pastureland to another. See Br. of Appellant at 36. The record leaves an open factual question as to whether the type of erosion that Ecology is seeking to *250prevent is actually occurring, or may occur absent the order, requiring remand to the court for resolution.
¶50 Fifth, Ecology alleges that Lemire’s cattle “wallow” in the creek. AR (Decl. of Chad Atkins) at 4. The dictionary defines “wallow” as “to roll or move oneself about in an indolent ungainly manner” or “sprawl luxuriously.” Webster’s, supra, at 2573. Lemire notes that Atkins did not actually view any cattle “wallowing” because cattle do not wallow: they get stuck in mud, so they prefer firm dry ground. AR (Decl. of Lemire) at 4. Lemire states that cattle lying down in a creek may even drown. Id. Cattle often use their heads and necks to right themselves, and when they are on slick ground it may mean that they keep their mouths and noses under water for too long while they are attempting to get up. Id. Again, remand is appropriate to resolve this unlikely and unsupported allegation of harm.
¶51 Finally, Ecology claims that the cattle have direct, continual, and uncontrolled access to the creek and that there is a livestock confinement area adjacent to the creek. AR (Decl. of Chad Atkins) at 3-4. Lemire responds that he constantly monitors his cattle and that the cattle are not allowed access to the creek from late November through the runoff period in April due to possible flash flooding. AR (Decl. of Lemire) at 5. Lemire further alleges that there was a two-year period between 2003 and 2009 in which no cattle ever accessed the creek. AR (Notice of Appeal) at 3. Additionally, Lemire argues that he has implemented best management practices since 1994. AR (Decl. of Lemire) at 3. For example, Lemire locates salt licks, the cattle’s watering troughs (one in each pasture), and the cattle’s feed several hundred yards to over three-quarters of a mile away from the creek, all in an effort to protect the riparian corridor. Id.-, AR (Notice of Appeal) at 1.
¶52 Lemire concedes that there is currently no fence stretching across the entire creek on both sides, that the cattle will cross the creek to get to other pastures (something Ecology apparently will have no problem with in the *251future), and that the cattle will occasionally drink from the creek (again, Ecology said that this would be no violation).13 See Clerk’s Papers (CP) at 129; Br. of Appellant at 36. Lemire reiterates, however, that he does not concentrate the cattle on the stream banks by placing feed near the banks or in any other manner. AR (Notice of Appeal) at 1. As noted in detail above, Lemire contests Ecology’s argument (not testimony) that his cattle have “uncontrolled” and “continual” access to the creek. The claim that Lemire’s cattle have “unrestricted access to the stream,” i.e., wander all over the property and creek without any sort of guidance or control, is clearly contested.14 See majority at 236.
¶53 In sum, Lemire conceded that there is no continuous fence on the property like the one Ecology seeks, that cattle occasionally drink from and cross the creek, and that whenever cattle were breaking down points along the high bank of the creek he fixed that problem with drift fencing. Lemire contested every other Ecology assertion of fact. Consequently, according to the Board and the majority, in order for a rancher to create a “substantial potential” to pollute, all the rancher has to do is (1) have a state water body on his or her property15 that is not completely fenced off and (2) own cattle that occasionally cross or drink from *252the water body. That is it. Nothing else needs to be proved but those facts. Surely, that cannot be what the 1945 legislature intended by “substantial potential to violate.” RCW 90.48.120(1). That conclusion is strongly called into question by all the other legislation in place protecting the use of agricultural land and stockwater rights. See, e.g., RCW 90.48.422(3) (protecting water rights from Ecology action), .450 (requiring Ecology to avoid enforcement actions that would contribute to agricultural land being converted to nonagricultural purposes). That conclusion is further contradicted by the position Ecology took before the superior court and then later before this court that Lemire would be able to install gates in the required fencing to allow the cattle to cross and drink from the creek.16 CP at 129; Br. of Appellant at 36.
*253¶54 Lemire’s statements amount to much more than “conclusory allegations”17 and create genuine issues of material fact about whether or not the conditions Ecology’s witness (not a qualified “expert”) allegedly observed are present. An appellate court must evaluate the evidence presented in the record in the light most favorable to the nonmoving party. The majority impermissibly made its own credibility judgment when it sided with Ecology.
¶55 Given the presence of genuine issues of material fact as to whether or not the many detrimental conditions alleged by Ecology actually exist, however, I would remand the case to conduct a hearing. A hearing would be the proper place to judge credibility and would result in a proper record for an appeal.18
II. Ecology’s Authority To Issue the Order
¶56 I assume the majority’s finding that RCW 90.48.080 and RCW 90.48.120 on their face allow Ecology to regulate some nonpoint sources of pollution. I also agree that we should not reach the issue of stockwater rights given the lack of evidence in the record.19 Likewise, I agree that it would be improper for this court to invalidate the order on the basis of RCW 90.48.450 when Lemire failed to timely raise the issue before the Board.
III. Takings
¶57 I briefly write on this topic to make it clear that the “question” of whether or not our state constitutional takings *254provision offers greater protection than its federal counterpart has already been answered in the affirmative.20 See majority at 241; e.g., Mfd. Hous. Cmtys. of Wash. v. State, 142 Wn.2d 347, 357-61, 13 P.3d 183 (2000) (holding that article I, section 16 of the Washington Constitution offers broader protection than the Fifth Amendment to the United States Constitution); Brutsche v. City of Kent, 164 Wn.2d 664, 681 n.11, 193 P.3d 110 (2008) (“We have held in other cases that article I, section 16 provides, in some ways, greater protection”). Among other differences between the state and federal takings provisions, article I, section 16 states that “[n]o private property shall be taken or damaged for public or private use without just compensation having been first made . . . .” Wash. Const, art. I, § 16 (emphasis added). The extent of this greater protection has not yet been fully delineated in all contexts.
¶58 The superior court found that Ecology’s order constituted a per se taking. Under state and federal law there is a per se or categorical taking when:
(1) a regulation effects a total taking of all economically viable use of one’s property; or (2) the regulation has resulted in an actual physical invasion upon one’s property; or (3) a regulation destroys one or more of the fundamental attributes of ownership (the right to possess, exclude others and to dispose of property); or (4) the regulations were employed to enhance the value of publicly held property.
Mfd. Hous., 142 Wn.2d at 355 (citations omitted). Despite the additional protection our state constitution affords, the record before us presents insufficient facts for us to conclude that there has been a per se taking, though the court below so held.21,22
*255¶59 Lemire claims that the fence will prevent his cattle from grazing pasturelands on the far side of the creek, that it will prevent him from exercising his stockwater rights, and that it will derogate his “fundamental property interests by denying the full and complete right to occupy and possess” his property. Resp’t’s Br. at 45. If we review the order, it clearly does not make any specific provision for the cattle to drink from or cross the creek. AR (Ecology Order 7178) at 2. To the contrary, it requires “exclusion fencing,” “off-stream watering facilities,” and that Lemire eliminate “[(livestock access to the stream corridor ... by May 31, 2010.” Id. at 2-3. It was only later in its briefing to the superior court and before this court that Ecology finally clarified that Lemire’s cattle would be allowed to drink from and cross the stream to reach the other pasturelands; this is argument, and it contradicts the challenged order in the record. CP at 129; Br. of Appellant at 36.
¶60 The order does, however, fence off approximately 7.23 acres of nonriparian land. Br. of Appellant at 36; Resp’t’s Br. at 3. Lemire claims that he has only about 40 *256acres of flat, irrigated land suitable for farming and that the order’s fencing requirement (35 feet out from the top of the stream bank on each side measured horizontally) will significantly cut into his crop production. AR (Notice of Appeal) at 3. Lemire will no longer be able to graze his cattle in this area, nor will he be able to farm the land. Assuming all 7.23 acres is farmable, the order converts approximately 18 percent of Lemire’s farmland into nonagricultural land.23 Moreover, if Lemire decides to sell his property at some point in the future, undoubtedly the 7.23 acres will have to be sold at a substantially reduced price or for no value at all.
¶61 Considering the fundamental attributes of property this court has identified to date, from this record it does not appear that any of the fundamental attributes of Lemire’s property have been destroyed. Lemire is still the owner of the enclosed land, can still exclude others from occupying it, and can still transfer the land. Unlike the landowners in Manufactured Housing, it does not appear that the order takes any of the sticks in Lemire’s bundle of property rights. See Mfd. Hous., 142 Wn.2d at 367. It is possible that Le-mire’s property has been “damaged” by the order, but there is not enough evidence in the record to establish the type and magnitude of this damage.24 See Wash. Const, art. I, § 16.
Conclusion
¶62 By upholding the Board’s grant of summary judgment and reversing the judgment of the superior court, the majority makes an implicit finding that the Department of Ecology is more credible than Mr. Lemire. An evaluation of credibility, however, has no place in the review of a grant of *257summary of judgment. It is the province of the fact finder below. Because we are required to evaluate the evidence presented in the administrative record in the light most favorable to Lemire, the nonmoving party, I would remand the case for a hearing. It is clear from the record that there are genuine issues of material fact.
¶63 The majority’s contrary decision disregards a judgment of a superior court and undermines, if not destroys,the value of Mr. Lemire’s agricultural land that is entitled to statutory and likely constitutional protection. I dissent.
Interestingly, the majority never mentions that it is over seven acres of land of this small farm and ranch that is being taken or converted for state conservation purposes. See Br. of Appellant at 36; Resp’t’s Br. at 2.
On several occasions, Ecology proposed to financially help or bear this burden. We will see.
Notably, the arguable vagueness of the “substantial potential” standard has not been argued or resolved.
The majority refers to Ecology’s employee, Chad Atkins, as an expert in water quality. Majority at 234. Atkins may be able to qualify as such, but no court made that “expert” determination. ER 702. It is unclear, however, without more foundation whether Atkins’ statements regarding the conditions he claims to have observed from a distance — clear outside the farm and from a passing highway— would be admissible in court. A fact witness is required to establish enough foundation to show that he or she has personal knowledge of the facts in question. ER 602. From the record, we do not know where Atkins was when he made his observations, what time of day it was, how long he stayed to observe, how it was that he was able to see the detail he describes from an observation site somewhere off of Lemire’s property, etc. It appears Atkins made most observations from his car along Highway 12, which bisects Lemire’s property
It is not insignificant that Atkins spent six years trying to make a case against Lemire. Ecology made one visit in February 2003, one visit in February 2005, one visit in February 2006, one visit in March 2008, and then a series of four visits in succession in 2009 when it was ramping up its efforts in anticipation of the enforcement order: two in March, one in April, and one in early May. AR (Decl. of Chad Atkins) at 3.
Again, this is a vague and subjective criterion.
WAC 173-201A-260(l)(a) recognizes that sometimes water bodies “cannot meet the assigned criteria due to the natural conditions of the water body and that when this occurs “due to natural climatic or landscape attributes, the natural conditions constitute the water quality criteria.”
Especially when Lemire’s electrical water pump system for groundwater fails because of a power outage or the pipes freeze, and he cannot fill the troughs. AR (Decl. of Lemire) at 5. Lemire says this usually happens one or two days a year. Id.
The drift fencing Lemire installed is one obvious example of how Lemire has controlled and guided his cattle’s movement on the property. AR (Decl. of Lemire) at 5.
The majority incorrectly suggests that evidence that Pataha Creek is polluted is sufficient proof (entitling Ecology to summary judgment) that the conditions necessary to create a substantial potential to violate exist on Lemire’s property. For example, the majority makes sure we know that the “[t]he creek is a polluted water body” and that the alleged “pollution of the creek is consistent with what one would expect from the conditions at the Lemire property,” but the majority is not so quick to point out that Ecology’s order is no way dependent on Pataha Creek’s polluted status. Majority at 235. Ecology makes it very clear that it is not and does not have to rely on any testing. AR (Dep’t of Ecology’s Mot. To Dismiss & Mot. for Summ. J.) at 25-26. Even if a water body is polluted, Ecology must still meet its burden by proving that conditions that create a substantial potential of violation *252exist on the property in question. It is important to note, however, that Ecology may have to prove causation in any future enforcement action against Lemire.
Ecology’s regulations require activities which generate nonpoint source pollution to be controlled by the application of best management practices. WAC 173-201A-510(3)(a). The regulations further require a nonpoint source polluter to apply all appropriate best management practices. WAC 173-201A-510(3)(b). If a nonpoint source polluter is applying “all best management practices appropriate or required by the department and a violation of water quality criteria occurs, the discharger shall modify existing practices or apply further water pollution control measures, selected or approved by the department, to achieve compliance with water quality criteria.” Id. (emphasis added). Thus, if Lemire complies with Ecology’s order in full, the only way for Ecology to force Lemire to apply further control measures would be for Ecology to prove that Lemire has caused a violation of water quality criteria. This is significant because the record reflects the strong possibility that pollution sources upstream from Lemire’s property and downstream from Lemire’s property (but upstream from Ecology’s testing site) are significant contributors to the pollution of Pataha Creek. AR (Notice of Appeal) at 3. Ecology cannot continue to bring its regulatory might to bear on Lemire alone when he has complied with this burdensome order and Pataha Creek is not cured of all of its pollution problems without direct proof that Lemire’s property is in fact a source of pollutants.
If we confined our review to the administrative record, like we are supposed to, the order strongly suggests that the cattle would never be allowed to enter the riparian corridor, let alone cross the creek to access the other pastures or to drink. AR (Ecology Order 7178) at 2-3.
Just as Atkins would likely qualify as an expert for purposes of a trial due to his training and experience, Lemire also would likely qualify as an expert in farming, ranching, and cattle behavior for similar reasons. As a fact witness, Lemire has certainly observed his cattle with more frequency than Atkins. Consequently, the Board’s cursory dismissal of Lemire’s statements as “conclusory allegations” was inappropriate. AR (Order Granting Mot. To Dismiss & Mot. for Summ. J.) at 13.
The stakes are high for Lemire. Lemire must either construct a fence that will likely cost tens of thousands of dollars, give up ranching, or be subject to what will likely be substantial financial penalties. See RCW 90.48.142, .367.
Moreover, it is now Ecology’s position that Lemire’s cattle can drink from the creek. CP at 129; Br. of Appellant at 36.
The conversion of agricultural land to other use is statutorily restricted. Lemire even attached ROW 90.48.450 to his notice of appeal.
On appeal, Lemire concedes that there has been no physical invasion or total regulatory taking. Resp’t’s Br. at 38. Lemire’s argument instead is that there has been a partial regulatory taking because there has been a “derogation or *255destruction of a fundamental attribute of property ownership.” Id. at 39 (citing Guimont v. Clarke, 121 Wn.2d 586, 603, 854 P.2d 1 (1993)).
Notably, the United States Supreme Court’s recent decision in Koontz v. St. Johns River Water Management District, 570 U.S._, 133 S. Ct. 2586, 186 L. Ed. 2d 697 (2013), also expands property owners’ ability to challenge local land use regulations and fees. In Koontz, the Court said that a landowner may challenge a government’s decision to deny a land use permit or condition approval of a land use permit on the payment of fees using the standards set forth in Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). 133 S. Ct. at 2589. Here, there was no permit, but arguably worse: the threat of enforcement (including criminal charges) against the use of one’s own property. Koontz, however, illustrates the continued strength of private property rights under our federal constitution.
See supra note 20 (citing ROW 90.48.450).
Acknowledging that I write in dissent, it is my sincere hope that Ecology will attempt to help Lemire secure a source of funding for this expensive fence. It would he an injustice if Lemire had to sell his farm or close down his cattle operation because he could not afford the fence.