DOE's third try still displeases some but satisfies most who railed against it
PACIFIC COUNTY - After a year of negotiations with critics, the Washington State Department of Ecology [DOE] is hoping that the third time's the charm for updating the state's shoreline guidelines, which regulate development on lands within 200 feet from substantial bodies of water.
When the protection regulations were last updated in 2000, they drew the ire of farmers and businesses that believed DOE was overstepping its authority by protecting endangered species at the expense of private property owners.
However, the revised guidelines offer more clarity and flexibility for businesses, according to Bryan Harrison, director of community development for Pacific County.
The revised guidelines create a "no net loss of shoreline ecological functions" standard for habitat, which pleases fishermen and environmentalists.
Yet the guidelines also prohibit the taking of property without compensation, which pleases farmers, businesses and private property owners.
"The level of reasonableness has increased," Harrison said.
Ecology spokesperson Sheryl Hutchison calls the shoreline guidelines revisions "environmental as well as economic."
"It's important to remember that eight years of work have gone into these [guidelines]," Hutchison said. "We feel that we've worked very hard to get everyone up to speed."
The revised set of guidelines is up for public comment through Sept. 15. And interested parties will be poring through its content to answer some key questions:
What revisions has Ecology made to garner support from environmentalists, farmers and business owners alike? What details might cause sticky situations in the future? And what are the costs and benefits of implementing these revisions?
Changes to Guidelines
The Shorelines Management Act - passed in 1971 and adopted in 1972 by a public referendum - aims to prevent harm to the state's shorelines from uncoordinated development.
The act applies to more than 20,000 miles of shoreline, 2,300 miles of lake shores, 16,000 miles of streams and 2,400 miles of marine shoreline.
Controversy has shadowed the state's shoreline management guidelines since Ecology first began to revise them. In 1999, a draft was withdrawn after comments showed that substantial changes were needed.
Parts of Ecology's revised rule, adopted in 2000, were overturned on appeal. The state's Shorelines Hearings Board ruled the department went past its authority when it tried to implement the Endangered Species Act through the new shorelines regulations.
A year of mediation talks pruned the language of the guidelines.
Under the revised shoreline guidelines, local shoreline programs must abide by these terms:
Respect constitutional and legal limits on regulating private property.
Inventory the shorelines in their jurisdictions and analyze the ecological functions they provide, and pair the functions with acceptable uses of the land.
Assure that new development will result in no net loss of shoreline ecological functions.
Implement "softer" bulkheads, such as vegetation, to control erosion and flooding.
Set priorities and include a plan for restoring past shoreline damage.
Coordinate shoreline programs with local comprehensive plans and regulations, and with other state and federal requirements.
Both the Association of Washington Business - which headed the coalition that appealed the 2000 shorelines revisions - and the Washington Environmental Council now endorse the current draft.
"For the most part, we are fairly comfortable with the outcome," said Kristen Sawin, a governmental affairs director at the Association of Washington Business. "No set of regulations, from the business community's perspective, is going to be perfect. These are rules we think we can live by."
If the guidelines are accepted, cities and counties will amend their local shoreline master programs on a staggered schedule that begins in 2005 and ends in 2014. Pacific and Grays Harbor counties would submit their amendments by December 2014.
The shoreline guidelines will impact urban and rural counties differently.
Rural counties have a higher percentage of shorelines that are undeveloped, as compared with urban areas such as King County, so more permitting will likely be involved in future development. For instance, the shorelines guidelines are one of several environmental protection regulations for wetlands in Pacific County.
"We're the most regulated county in the entire state" for wetlands preservation, said Dick Reiners, a Peninsula consultant. "There's a great deal of protection."
Also, the guidelines don't clearly define "natural areas" that need to be protected, added Pacific County Commissioner Pat Hamilton. If a natural area is defined as any area with natural vegetation, development could be stifled in rural counties, she said.
But rural counties will have an advantage over urban counties in shoreline planning, said Hutchison of Ecology.
"The rural areas haven't done the damage that urban areas have," Hutchison said. "The urban areas will have to do more restoration."
Is the language still imprecise?
The revised shoreline guidelines are stricter than the original, according to Hamilton. Although Hamilton is pleased that Ecology's new guidelines do not mandate fish recovery and habitat restoration, she is still concerned about the "no net loss of shoreline ecological functions" benchmark.
"The problem with that is that it's going to be really subjective," she said. "It hasn't been defined by science and the courts, so we're going to end up in another legal battle. Here we go again."
People will have to approach the "no net loss" standard with "reasonable minds," said Harrison, who was a member of the mediation team.
"There's a lot of faith invested in that term," Harrison said. "What it really means is no intolerable loss, where for every action, there is an impact. We're going to have to take it on faith that we're going to work it out."
Richard Kennon, a Yacolt fisherman and director with the Native Fish Society, says there's no confusion about the "no net loss" term.
"To me, it's a common-sense term," he said. "You don't take anything away from the habitat."
Judy Grigg, environmental affairs manager at the Port of Longview, has no problem with the "no net loss" standard. But she would like to include language that acknowledges harbor areas are water-dependent and cannot always use on-site mitigation to compensate for development.
"There isn't any specific language to guide the cities and counties to allow for offsite mitigation," which is important if the Columbia River is dredged, Grigg said. "We have to be able to dredge and perform maintenance of the waterfront."
Costs and Benefits
The new regulations "can't but not be" an economic impact to the county, said Harrison of Pacific County community development.
The county has already hired a specialist to handle the state's Critical Areas Ordinances, which protect wetlands, fish and wildlife habitat and geologically hazardous areas. Pacific County will have to complete another analysis for shorelines regulations, Harrison said.
Although Ecology has given Pacific County until 2014 to amend its shorelines master programs, there are no guarantees that the state will help fund the county's work on the project.
The Legislature has provided $2 million in Ecology's budget for the three cities and two counties that are first in line to revise their shoreline management programs. The cities of Port Townsend, Bellingham and Everett, and Snohomish and Whatcom counties are scheduled to complete their revisions by December 2005.
Gov. Gary Locke and Ecology have pledged to continue to ask the Legislature for funding, but the state hasn't committed to funding in the future, said Harrison, who is concerned that "it always costs more and takes longer" when taking on such a sizable project.
"We have 11 years to pull this off," Harrison said. "Even thinking that, it's a daunting task."
In addition, any new regulations will increase costs for property owners and will challenge developers, said Reiners, the Peninsula consultant.
Regulations already in place have generated boxes of permitting paperwork just to build a single-family home, according to Reiners. When a family has made a substantial investment in land, "what are you going to do - walk away from it?" Reiners said. "I don't think so."
According to Hamilton, Pacific County commissioner, the extra amount of work involved due to the new regulations will cause consultant fees to increase dramatically.
"Consultants will be evaluating habitat, ecological function and mitigation proposals," she said.
But on the flip side, some argue that despite the increases in permitting fees, the economic benefits of the regulations will be realized in other ways.
The shorelines regulations will pay off in the form of better sport fishing, said Kennon, the Yacolt fisherman. And that means more funds coming in from sport fishers who must purchase licenses, fuel, lodging and food.
"This will help to restore our fish losses and will help protect the economy of the Northwest," Kennon said.
According to Kennon, every sport-caught salmon fetches $40 in revenue for a local community, while commercial fishing nets only $3 or $4 per fish.
Kennon travels across the West to fish. One of his stops is a town in Montana with a population near 100. There are four fishing shops in town, Kennon said, and "they make a ton of money." Good fishery management there leads to big trout for sport fishers to catch.
"We can do the same thing here," he said.
For copies of the draft guidelines and related environmental and economic analyses, call (888) 211-3641, e-mail (firstname.lastname@example.org) or write to: Shoreline Guidelines, Washington Department of Ecology, P.O. Box 47600, Olympia, WA 98504-7600.
Written comments may be submitted by e-mail or mail to the addresses above, no later than Sept. 15.