Our Shorelines and Critical Areas: Complex Differences in Environmental Protection Aired at County Meeting

From left, panel participants Aug. 25 at the County workshop are Dr. Kathy Taylor, Tom Sibley, Dennis Reynolds, Richard Mraz, Kyle Loring, Robert Levinson, John Graves, Bot Fritzenn, Dr. Kenneth Brooks and Paul Anderson

Updated Sept. 12, 2009

Trying to shed some light on the complex mandates of protecting the islands’ environment while limiting a cash-strapped county government, the San Juan County Council convened a workshop with experts on environmental protection and property rights from the public and private sectors on Tuesday, Aug. 25.

About twenty minutes into the three-hour workshop on the Critical Areas Ordinance (CAO) and Shoreline Master Plan (SMP), a county-wide power outage turned all the lights out at the San Juan Community Theater, where the meeting was held.

Council Chair Rich Peterson continued the meeting, and the [intlink id=”council-workshop-august-25-will-cover-critical-areas-ordinance-and-shoreline-master-plan” type=”post”]panel of experts [/intlink] called out their  responses to council questions, to an audience that sat, for the most part, in the dark.

County Communications Program Manager Stan Matthews said on Aug. 19:

The Critical Areas Ordinance is being revised in compliance with provisions of the Growth Management Act. Work is also beginning on the updated Shoreline Master Plan, due in 2012. Because wildlife habitat and environmentally sensitive geological areas overlap at the shoreline, public discussion and debate, and the County’s staff work on the two topics have also overlapped.

The most debated issue is the minimum distance that new development should be set back from the shoreline. State regulations and some scientists have suggested a need to increase setbacks to as much as 150 or 200 feet. Real estate and development interests in San Juan County, have suggested that such requirements could cost the County millions of dollars in lost property value and property taxes.

Peterson had opened the meeting by announcing the goal of identifying the information needed to update the CAO and SMP through questions to the experts in order to:

• understand as thoroughly as possible the complexities in order to move ahead;
• understand which parts of the updates have basic agreement
• understand the disagreements where they exist

Residents of San Juan Island were in the majority at the well-attended meeting, and Peterson noted “great representation from all islands, including Shaw and Waldron.”

Many of the panel have extensive experience in formulation of CAOs in other Washington counties, among them Jefferson, Island and Skagit Counties.

However, the meeting gave the public an opportunity to enlighten themselves as to the complexities facing the county and the council in formulating both pieces of legislation.

Part of what’s at issue is a $400,000 grant from the Department of Ecology to prepare an update to the Shoreline Management Protection Act, which is due by 2012, although a one-year grace period is allowed. The county expects to receive those funds, probably beginning before the close of this year.

Bob Fritzen, who is the primary contact between the Department of Ecology (DOE) and San Juan County, said that DOE’s role in the process is to write guidelines that involve public participation, analyze the impacts, and approve a restoration plan, “once the master program is locally adopted.”

Ecology also “defends the ‘best available science’ in cases of appeal, Fritzen said. “To a certain extent, DOE does have the trump card, or final authority [in CAO and SMP updates],” although their decisions can be appealed to the Growth Management Hearings Board (GMHB).

“In the worst case scenario,” Fritzen began, when the lights suddenly went out.

After some minutes, he picked up his train of thought, and said, “In the worst case scenario, if the DOE and state can’t agree, then the DOE is required to deny the entire SMP.”

But “ideally, the [parties] come to agreement through the process — that’s our goal,” said Fritzen.

Bob Levinson, a professional engineer with Earth Solutions NW,  asked what distinctions the DOE makes between the CAO and SMP.

According to Fritzen, the recent “Anacortes decision” by the State Supreme Court “confused the issue.” That decision stated that either the SMP must be amended to include “critical areas” or the CAO update must be submitted by itself to the DOE for approval. “The process is being worked out,” Fritzen said, adding that the DOE must approve the goals of the SMP.

“The critical areas portion is where DOE, [in the person of agents such as Fritzen], “provides assistance to the county and can help with appeals… [DOE] works with jurisdictions to provide assistance where we can.”

Attorney Dennis Reynolds, representing the Common Sense Alliance, stated several times at the meeting that while he and others may have differences with the DOE, “It has been my honor to represent state government for 12 years,” and that the disagreements represent “some honest differences of opinion.”

He then went on to chide the DOE, saying that his “best view of the  Anacortes decision and legislation adopted by the state legislature… says that counties have to regulate critical areas in shoreline areas with the Shoreline Master Plan– period.”

“I don’t think the DOE should rule; you have to accept the decision of court and move on.”

Reynolds asked if the public would approve the 1971 Shorelines Management Act today “if  it had generic 150-200 feet ‘no-build’ buffers?”

Attorney Kyle Loring for the Friends of the San Juans responded to Reynolds, saying that the dilemma facing the county is to balance shoreline uses with protection of the environment. He said that the State Supreme Court addressed this dilemma in two cases, deciding that the “Stated intent of the Shoreline Management Act is to protect the shoreline.”

Fritzen said there were no “strings attached,” to the $400,000 state grant, other than the requirements to follow the grant agreement, including elements such as guidelines, time frame, cost elements, and hiring contracts. “In the end we have to approve the SMP, but in no way do we ram anything down anybody’s throat.”

Reynolds warned of the experience of Jefferson County in updating its CAO, saying that those citizens face two drafts to consider, one from Jefferson County staff and one from the DOE. “Is that technical guidance or encouragement?” he asked, and advised the San Juan Council to “take the grant money,” but also use some of it to “set up a litigation fund. That’s  not a threat, it’s a fact.”

County Council member Howie Rosenfeld asked if other counties that have completed the plan “have similar contentious setback issues.”

Fritzen replied that he was only familiar with Skagit County, in which 150-foot buffers were set within the CAO and incorporated into the SMP. “That’s not to say 150-foot buffers weren’t an issue, but the county did a good job of informing the public about a number of scenarios that allow you to reduce – or increase in some cases – the buffer.”

Paul Anderson, wetlands specialist for the DOE and the primary contact for wetlands issues for San Juan County’s CAO update said, “All science shows that there are still problems in Puget Sound; ecological impairment is still occurring.” He said that DOE takes “a precautionary approach in light of insufficient data.”

In response to questioning from Council Member Richard Fralick, Anderson said, “Where development occurs and critical areas are involved, you need to go through steps of avoidance and mitigation.

“The goal of no harm is desirable, but not a stated goal.”

Throughout the meeting, panel members aired the definition and process for assuring “best available science” is used (a requirement of the updating process). Dr. Kenneth Brooks of Aquatic Environmental Sciences, Inc., who was involved with the Jefferson County CAO review said, “An analysis of published peer-reviewed documents …   clearly demonstrate that, in  respect to water quality and hydrology, smaller buffers are necessary.”

Brooks advocated an alternative to large buffer zones, namely monitoring of site-specific areas, and “adaptive management when harm is found.”

Paul Anderson put in that managing “smaller buffers with monitoring is very costly — both for government and for property owners.” He brought up that the State Supreme Court had admonished Skagit County “for trying to establish a monitoring and adaptive program without the jurisdictional ability to establish benchmarks and technical support.”

Anderson advocated study of Growth Management Hearings Board and Court decisions in formulating the county’s CAO and SMP updates.

Council member Lovel Pratt asked for a rough estimate of how much it might cost San Juan County to establish a monitoring and adaptive agency. Estimates put forth were between $100,000 to $200,000 per year; the lower figure was estimated using the San Juan County Conservation District as a resource.

Rick Mraz, a wetlands specialist who assisted in five counties’ CAO updates, said “We have found the size of buffer is related to the quality of the wetland, the quality of buffer, and adjacent land uses.”

Paul Anderson said the DOE’s role is “to provide guidance to county; first you must identify critical areas and resource lands. You can only balance the 14 goals of the GMA after identifying those areas.”

“The land speaks first,” Anderson said.

National Flood Insurance Program (NFIP) Specialist John Graves, who works with the Federal Emergency Management Administration (FEMA), spoke at length on the implementation of biological decisions relating to the NFIP.

John Graves said that FEMA is receptive to “any approach [in CAO and SMP updates] that meets minimum standards of the biological opinion (Bi-Op) and the NFIP.” Graves said that he will provide a copy of the newest draft of the NFIP guidelines for a model ordinance by next week.

Tom Sibley, Branch Chief of the Northern Puget Sound Habitat Branch of the National Oceanic and Atmospheric Science Administration, which prepared the biological opinion said that FEMA has been “provided with a version of a model ordinance that would apply, from our perspective, wherever you are, with respect to the quality of habitat for survival of the species….

“In some particular situations,…extensive buffers won’t be required.”

When Fralick asked if there were ramifications whether the buffer requirements or alternative plans were incorporated in the updates, Graves replied that counties not in compliance “can be removed from national flood insurance program, wouldn’t get loan, or certain disaster assistance; you may still have an issue with national marine fisheries service that you haven’t complied with the Endangered Species Act.”

Rosenfeld then asked how that interpretation applies to county shorelines, and Graves replied, “FEMA is still trying to determine that,” in considering if there is a difference in the proposed buffers, based on state shorelines, between marine shorelines and state shorelines.”

“We’re still trying to work out the marine aspect of this,” said Graves.

Anderson advised review of Island County’s ordinance, which “early on raised issues of unique circumstances… and ruled that state requirements for bas still applied.”

Reynolds said the task before the council is to approve updates that “Provide overriding benefit to public; it’s going to be a tough question.”

Fritzen said that determining “which shorelines are critical areas — when all near-shore habitat is in itself a critical area — that’s going to be your number one question. Regardless, you still have to protect shoreline.”

Levinson argued that “Inappropriate activities threaten the environment no matter what the buffer.”

When Anderson opined that “buffers are one tool to reach end of habitat protection,” Brooks began a review of whether performance standards or operating standards are preferable in protecting the environment.

“It’s not what you do that’s so important, it’s how you do it, you can build a home 50 feet from water in forested wetland and have no effect, or build 200 feet from water and have significant effect. The significant elements are education and performance standards.

“Buffers are an inappropriate way to address protection of surface waters and critical areas; you need site-specific plans and performance standards that are enforceable,” said Brooks.

Anderson said, “Nature is messy; it’s difficult to measure. It’s much wiser and safer to allow some protection of habitat through a buffer, than try to measure what’s there.” Such efforts are “expensive and challenging to implement,” said Anderson.

Amy Windrope, Project Manager of the San Juan Initiative, a three-year pilot project which is funded independently from the county, spoke to the gathering about the recommendations of the Initiative group.  The SJ Initiative is co-chaired by Lovel Pratt and Jonathan White, Orcas Island builder and chair of the NW Straits Commission.

The recommendations regarding the approach to buffers were made unanimously by the Initiative group. Stating that of the 200 parcels county-wide that have “hard-shore construction” on them, Windrope added that only 9 of them have permits. “We don’t have the ability in this community to keep track of permits, let alone a monitoring system,” Windrope said.

The San Juan Initiative recommendations for the shoreline setbacks can be found at https://sanjuanco.com/Council/CAOworkshop.aspx.