Growth board rules against county
July 3, 2008 · Updated 1:08 PM
"The growth board gives, and the growth board takes away.Just a month ago, the Western Washington Growth Management Hearings Board delivered some good news to Island County officials when it ruled that several key county development regulations were well reasoned and lawful when held up to the Growth Management Act.County planners drew attention to the board's decision as proof they were on the right growth-planning track, and county commissioners Mac McDowell and Mike Shelton used the good news to bolster their campaigns for re-election.But last Friday, the same board dropped the other shoe. On three remaining issues relating to stream and wetland buffers and agricultural activities on rural-zoned land, the board rejected current and proposed county regulations and - in one case - gave the county just 90 days to change the law or risk state sanctions.The growth board is made up of three governor-appointed members, who wade into local land-use issues whenever they are appealed. The board hears and reviews arguments and makes decisions on whether the county or city growth regulations legally comply with the state's 1990 Growth Management Act. The board is a first step in resolving conflicts before they reach the level of court trials.The board's most recent decisions come as a victory for the Whidbey Environmental Action Network, which has had an ongoing battle with the county over environmental protection regulations. The last of the issues to be resolved in the county's 20-year Comprehensive Plan all have to do with protection of critical areas such as streams, wetlands and wildlife habitat. Friday's decision is at least the second time the growth board has dealt with these same issues.WETLAND PROTECTIONWhen the county first adopted regulations regarding the size of undeveloped buffer zones bordering category B wetlands, sometimes known as wet meadows, the commissioners set the buffer width at 25 feet. That did not go over with either WEAN or the growth board, who questioned not only the shallow buffer's ability to protect water quality but also its ability to provide ancillary benefits to wildlife other than fish.The board told the commissioners to increase such buffers to a minimum of 50 feet. They did so in April but they tempered their decision by excluding land that was being regularly used for agriculture and by applying the 50-foot buffer requirement only to rural-zoned property of five acres or less.WEAN argued that by exempting land in other zones such as urban growth areas, rural agriculture, rural forest, commercial agriculture and Rural Areas of more Intense Development, the county was not offering true protection of wetlands.Friday, the board agreed with WEAN, saying that only applying the 50-foot buffer to rural-zoned land wasn't good enough.In order to achieve compliance in all other zones, the County must either increase Category B wetland buffers to at least 50 feet or analyze (on the record and including best available science) the adequacy of its other provisions to protect wildlife functions in those zones, said the board.Commissioner Bill Thorn said Tuesday that since the board gave the county the option of explaining its reasoning one more time, that might be the next logical step for the commissioners to take.STREAM BUFFERSThe size of undeveloped and unused vegetation buffers along type 5 streams was also an issue. Type 5 streams are the smallest classification of stream. They may be little more than a ditch and may carry water only during the rainy season. Though they may seem insignificant at times, such small streams can provide wildlife habitat or feed larger streams that contain fish.Once again the commissioners initially said a 25-foot buffer was sufficient to protect these minimal streams. But WEAN disagreed and managed to convinced the board that the buffers would be inadequate. The board again ordered the county to increase the buffer to at least 50 feet and again the commissioners complied - but like with wetland buffers the increase came with conditions. They applied it only to the rural zone or to those Type 5 streams that are tributary to a salmon bearing stream. They also exempted land where existing and ongoing agricultural activities were taking place.The board was not pleased by the county's decision.We thought we made it perfectly clear ... that best available science in the record and GMA's Critical Area protection requirements both called for wider buffers for all Type 5 streams throughout Island County. Further, we found the 25-foot buffers to be so egregious as to substantially interfere with GMA goals, the board wrote. After careful consideration of the evidence in the remand record ... we reconfirm that decision. The County must make its 50-foot buffer requirement applicable to all Type 5 streams throughout unincorporated Island County. If the County fails to provide this minimal protection within 90 days, we will request that the Governor impose sanctions.Commissioner Thorn said he wasn't surprised by the board's decision.We were told to increase them and we didn't do that, he said. Thorn had originally argued in favor of 50-foot buffers on all Type 5 streams but said he has since come to believe that they may not be necessary in every case.WEAN, however, contends that because wildlife is constrained by the island's natural boundaries, even the smallest streams serve great importance.BEST MANAGEMENTPerhaps the biggest win for WEAN and the biggest blow to county officials Friday came in regard to BMPs. The commissioners have long felt that small farms and ranches in the rural zone are key to the rural quality and appearance of Island County. In that regard they proposed environmental protection regulations for those farms and ranches that were less restrictive than those set by state law. These less-stringent rules were called Best Management Practices, or BMPs.BMPs allow many existing uses to continue while still applying some protection of neighboring critical areas. They are regularly used by large commercial agricultural operations but are not usually applied to farms where a couple horses are the herd and a field of grazing grass is the crop.As before, WEAN said regulations filled with loopholes are meaningless and put the natural environment at great risk. The growth board agreed with WEAN in June of 1999 and sent the county back to fix its BMP regulations. Last March, following several public hearings, the commissioners decided to stick with their original proposal and try to convince the board it was right. It didn't work.We certainly do not discount the value of gardening and casual hobby farming to rural character and lifestyle. However, the county has not shown that it has appropriately balanced the goals of the Act in affording these agricultural activities an exemption from its critical areas ordinance, the board wrote. The board did approve such exemptions for land in the rural-agriculture zone however.Thorn said the BMPs were part of a package of regulations that when taken as a whole seemed fair to most parties.It's too bad it got taken apart again, he said. When asked if imposing the tougher critical area regulations might cause some small farmers to give up, Thorn said he wasn't sure.There is some risk of that, he said.But WEAN maintains that without good protection of the environment, the way of life of everyone on the island will eventually be in danger.The commissioners have not met with their attorneys since the ruling was released and have no decision about their next step. They could adjust the regulations as required, file an appeal for reconsideration by the board or take the case to court. As far as Thorn is concerned, the last option is still the worst option at this point.I am unalterably opposed to going to Superior Court, he said. "