Sound Off: Time to obey wetland laws

By Steve Erickson

The Growth Management Act (GMA) requires Island County to review its laws protecting wetlands, streams, and wildlife habitat this year. GMA requires protection of these natural systems from a net loss of their functions. Protection must be based on the best available science.

Island County has re-hired outside attorney Keith Dearborn to direct this review. Dearborn is the Seattle attorney whose firm was paid over $1 million from 1997 to 2001 to write and defend the comprehensive plan and its implementing regulations. Dearborn gave the county commissioners bad legal advice. He assured them that they could exempt from GMA’s environmental laws any kind of agriculture anywhere in the county, arguing that the county commissioners had unlimited discretion to relegate environmental protection to the back of the bus. He defended ridiculously inadequate stream buffers of only 25 feet, telling the commissioners they only needed to protect the water quality of streams.

The county commissioners followed Dearborn’s advice because it gave them what they wanted – wholesale reduction of the 100 foot stream buffers county laws had required since 1984. Dearborn’s advice supported the commissioners’ ideology that in any conflict between environmental protection for the community and individual action, the environment always gets the short end.

Whidbey Environmental Action Network appealed to the Growth Hearings Board. I argued that case as a citizen attorney and won. The Hearings Board found the county’s action so far outside the law that in June 1999 it struck down the 25 foot stream buffers and agricultural exemption. The board threatened to ask the governor to withhold tax dollars from the county if it didn’t comply.

The county appealed to court. In September 2003 the Washington Court of Appeals upheld the Hearings Board’s decision. The appeals court ruled that all of the functions of critical areas must be protected and that environmental protection couldn’t always come last.

That should have been the end of the story. The county commissioners should have complied promptly with the Court of Appeals decision. But they haven’t. A year-and-a-half later, the county commissioners are still refusing to obey the state law. The Growth Hearings Board has given the County until April 16 to explain its actions. After that, the board may hold a hearing – or it may just ask the governor to withhold taxes from the county until the county commissioners stop breaking the law.

So why have the county commissioners hired Dearborn again? Because Dearborn will do his utmost to defend his clients, as lawyers are supposed to do. Unfortunately, what his clients, the county commissioners, want is to evade state laws protecting our environment. The lengths they’ll go to in pursuit of this goal are both expensive and absurd.

For example, the commissioners hired Dearborn for $350,000. Dearborn has now hired a wetland scientist from Oregon for $70,000 more to advise the county on GMA’s requirement to use the best available science. There’s nothing wrong with this, except that it is redundant and unnecessary. The Washington Departments of Ecology and Fish and Wildlife have been working since 2000 to review and compile the best available science on wetlands in Washington. The results are now available, including hefty tomes on the science, what it means, and recommendations based on the science. You can see and download this material at http://www.ecy.wa.gov/programs/sea/bas_wetlands/.

The Dept. of Ecology website states that “Ecology wetlands staff are available to work with local jurisdictions to develop effective wetland protection programs that include the best available science. Click here to get information on contacting the Ecology wetlands staff covering your area.”

Why are the county commissioners paying an outside expert when the state agencies have not only already done the work, but have openly offered to assist the county in wetlands protection that is legal and effective?

It’s time for Island County commissioners to finally do the right thing. Obey the law. Protect our environment.

Steve Erickson is litigation coordinator for Whidbey Environmental Action Network.

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