Stream buffers safe for now in county

More than 40 people vented for nearly three hours about type-5 streams, only to be told to come back again in a month.

The Monday hearing, which was about expanding the current 25-foot buffer that surrounds type-5 streams to 50 feet, ended when the Island County Commissioners changed the proposed ordinance significantly. This means that a second public hearing will be necessary on June 20.

Commissioner Mac McDowell voiced his desire to grandfather in properties that are already using the land that an increased buffer would swallow up.

“What I’m about to vote on, I don’t agree with,” McDowell said.

The law would require all type-4 and type-5 streams to have a 50-foot buffer. This could affect farming and other activities inside the buffer area.

The need for the change came after the county lost a series of court battles with Whidbey Environmental Action Network. It was determined that the current 25-foot buffer does not provide adequate protection for all the functions of small streams.

According to Island County Code, a type-5 stream is less than two feet wide and flows no less than two weeks per year.

Oak Harbor resident Scott Richards said the increase in the setbacks would result in a loss of 27,000 square feet from his 7.5 acre property. Because of the buffer, it would leave 1.25 acres untouchable.

“The only thing that will grow in it is mosquitos, which I’m sure I’ll get in trouble for, too,” Richards told the commissioners.

The proposed changes sparked Oak Harbor resident David Keller to reread the state and federal constitutions. He said that when the courts say that he cannot use a portion of his land as he pleases, it is a violation of the growth management act.

“The way I read this is that the state is taking my property,” he said after the meeting. “That is forbidden under the constitution.”

He said that a lot of his neighbors are in disbelief of the new rules.

“A lot of my neighbors haven’t been interested because they’ve felt it was way too flagrant to happen,” Keller said. “We are not in agreement with the provisions of the critical areas ordinance that will place severe limitations on our land.”

Oak Harbor farmer Amy Richards said that the new rule would render much of her land off limits. She expressed frustration over the county not informing of the problem earlier. The original court challenge occurred in 1998, and the court of appeals decision occurred in 2003.

“I don’t know who to yell at,” Richards said. “The county is saying they’re on my side; WEAN is saying it’s on my side. I feel like I’m in the middle of a cock fight.”

Richards is among the growing list of people that have expressed their desire to sell their land if existing land-use laws are changed.

“If this is passed, it will probably shut down my farm,” she said. “I will probably sell it to a developer... which will help somebody or help with the tax base, but it certainly won’t help Whidbey Island.”

Whidbey Environmental Action Network spokesman Steve Erickson said that the 25-foot buffer is only sufficient under ideal circumstances, which he said happen very rarely in the real world.

“The county’s continued emphasis on water quality is only half the issue,” he told the commissioners.

From 1984 to 1998, all streams in Island County had a 100-foot buffer, Erickson said.

McDowell added the amendment to grandfather existing uses for a multitude of reasons, one of which was to delay the enactment of the new ordinance.

“The bell hasn’t rung yet,” McDowell said. “We’ll have to adopt it when it does ring.”

You can reach News-Times reporter Eric Berto at

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