For a second time, the Island County commissioners asked a hearings board to find its conservation regulations in compliance with the Growth Management Act, or GMA, but a local environmental group again objected, claiming that the regulations do not actually protect local populations of rare plants or the western toad, a species of concern in Washington.

The Growth Management Hearings Board, which reviews allegations of non-compliance with the act, heard arguments on Thursday from Whidbey Environmental Action Network, or WEAN, and an outside attorney hired by the commissioners.

Under the act, counties are required to protect “critical areas,” such as fish and wildlife habitat conservation areas, through their conservation regulations.

The act also requires counties to periodically review and update these regulations.

On June 23, the county commissioners adopted an ordinance meant to complete an overdue update of Island County’s fish and wildlife habitat conservation area regulations and remedy several issues the hearings board identified following the county’s previous attempt two years ago.

While the ordinance did address some areas of contention raised by the hearings board, WEAN legal coordinator Steve Erickson argued that the last four issues concerning protection of the western toad, natural area preserve buffer zones, best available science and rare plants and prairies remained unresolved.

According to the commissioners’ June ordinance, the county did not find best available science indicating a threat to the western toad or justifying its designation as a species of local importance.

Instead, Susan Drummond, representing the county despite objections raised by Island County Prosecutor Greg Banks, said only documented western toad breeding sites would be protected through wetland and stream critical areas regulations. Only one breeding site is currently documented, Drummond said, making the site a designated fish and wildlife habitat conservation area.

Drummond also noted that the designation meant a biological site assessment is required if development were to ever occur within 1,000 feet of the breeding habitat. Still, Erickson and the hearings board raised several issues with the designation.

Erickson argued that best available science showed protection for the toad must go beyond breeding sites and include the species’ upland habitat. He claimed that several holes in the designation would result in a failure to protect the toad at all.

Hearings board member Raymond Paolella noted that the habitat’s designation seemed more “implied” than “expressed,” questioning Drummond on the wording utilized by the county.

“Would you mind just pointing out where in the ordinance that designation is?” Paolella said. “I guess what threw me a little bit is I don’t see the word habitat.”

Additionally, board member Nina Carter asked Drummond to respond to Erickson’s argument that a failure to designate the species itself is a failure to adequately protect it.

“The main question I have is [about] creating a system of fish and wildlife habitat with connections,” Carter said.

Carter emphasized that the state code for Fish and Wildlife Conservation Areas regulations states that counties and cities should consider creating a system of fish and wildlife habitats with connections between larger habitat blocks and open spaces, integrating with open space corridor planning where appropriate.

The statute also states, Carter pointed out, that level of human activity in such areas, including presence of roads and level of recreation, should also be considered, as crossing roadways has been known to pose a significant threat to the western toad’s survivability.

“I don’t live just in my bedroom, I live in the living room, I live in the kitchen and so on and so forth,” Carter said in reference to the toad’s habitat expanding beyond breeding sites. “What’s the common sense approach to this… How will the county not just look at the breeding site, and say this is a species of concern?”

Carter further questioned Drummond on how the county will manage the toad’s habitat connections if it’s not specifically outlined within the regulations or ordinance.

Drummond maintained that the county’s intent is to designate the toad’s breeding habitat and increase protections as needed and as more information on the toad’s extended habitat becomes available.

“How can we reconcile this intent of the county to designate the western toad with a fish and wildlife habitat conservation area when it does not say that,” Paolella said, noting that the regulations do not state how the county will increase protections if needed in the future.

Additionally, the hearings board heard further arguments concerning the county’s natural area preserve buffer zones and protections for rare plants and prairies.

According to Erickson, the county’s plant species of local importance list hasn’t been updated since the late 1990s, thus excluding four plant species currently on the state Natural Heritage list in need of protection.

Erickson argued that the regulations only protect plants occurring within sites the county has designated as prairies and do not extend to several plant species occurring outside these sites, despite being listed as threatened by the state.

Drummond countered that the plant species were left off because they haven’t been seen in the area since the 1970s, meaning the species are presumed extirpated from the Natural Heritage list.

However, Erickson argued that the county’s presumption of extirpation is incorrect.

“It is not that unusual to find, [and] relocate species that have not been seen for decades,” Erickson said, noting that he relocated populations of White Top Aster after the prairie species hadn’t been spotted since 1977.

Concerning the county’s Natural Area Preserve, WEAN again claimed that the county’s discretion with buffer zones is insufficient, ultimately putting the “heritage forest” within the preserve at risk.

Because of blowdown susceptibility or “windthrow,” Erickson said the heritage forest could threaten a structure if developed too close to the tree line and result in property managers cutting back the forest.

“The county’s own consultants said that windthrow is an issue,” Erickson said. “That the minimum buffers for windthrow are 100 feet.”

“But the county here is basically arguing that they need discretion to have no windthrow buffers if they choose.”

Still, Drummond maintained that the county’s regulations allow the planning department to ensure appropriate buffer functions if development is ever proposed. She claimed outside peer reviews deemed the regulations were more protective than WEAN’s suggestions, going beyond Growth Management Act requirements.

The hearings board did not issue a ruling following the compliance hearing, and noted that it did not have a deadline for doing so but would work quickly to reach a decision.

While Erickson asked the board members to require adjustments to the conservation regulations, Drummond requested that the hearings board put an end to what she called WEAN’s “game of Whack-a-Mole.”

“[The county] did exactly what the growth management hearings board asked it to do and went a step further,” Drummond said. “By no stretch has WEAN met its burden of proof to show clear error.”