Rules criticized for allowing building on all lands

The first overhaul of the county’s rules for developing property with wetlands in more than two decades is nearing completion. Island County planning commissioners were scheduled to begin their review of the county’s new wetlands rules this week.

The rewrite of the wetlands rules — a set of dictates that define how property owners can use lands with natural wet spots — is part of an extensive remodel of the county’s critical areas regulations. The regulations cover development of properties with environmentally sensitive spots, such as steep slopes, streams and wildlife habitat areas.

While the new wetlands rules have not been as controversial as the county’s new rules that cover farming on lands with critical areas, the proposed wetland regulations do have their critics.

WEAN, the Whidbey Environmental Action Network, said the new rules don’t go far enough in protecting wetlands because they won’t stop development that can hurt critical areas.

“The new critical area policies and regulations do not deliver,” Steve

Erickson and Marianne Edain of WEAN wrote in a recent 21-page memo to the county. “We urge the county to step back and start over, with a perspective that protecting the environment is not an annoyance required by state law, but a responsibility to the people who are here today and those who will come after; to all the plants and critters that make these islands what they are.”

Island County planning director Jeff Tate said he has heard concern about the new wetlands rules from all sides.

Public hearings on the proposed regulations wrapped up late last month and the complexity of the new rules was a common theme, he said.

“I think everybody, whether they are very concerned about property rights or whether they are concerned on the environment, are saying how complex the ordinance is,” Tate said.

“We would love to keep the existing ordinance because of its simplicity,” he added.

“We recognize that’s not a reality,” Tate said, explaining that the county is now required by the state to base its rules on the “best available science.” That’s led the county to hire a team of outside consultants, scientists and experts to help rewrite the rules, which have undergone peer review not only by the county’s hired help, but also a group of state agencies.

Despite the rewrite of the rules, the county has discovered its existing wetland rules have worked pretty good over the years in protecting sensitive waterways. A comprehensive study released in August 2006 said the county’s wetlands were generally in good health.

“While the ordinance that we’ve had in place for the past 23 years has done a pretty good job in protecting wetlands …

I don’t think that it would be realistic to say that the existing regulations are going to be capable of handling growth for an infinite period of time,” Tate said.

Adding to the complexity of the new rules, he said, is that the application of the new rules will be site-specific. What might work on one property might not work on another. And that has some people worried.

“A lot of people when they start looking at the ordinance … they have concerns about discretion, about how the ordinance will be implemented,” Tate said.

Others, he said, have quite the opposite in mind.

“It cuts both ways. They’re concerned that the department may exercise too much discretion and further infringe upon property rights and an equal number of people are saying we’re not exercising enough discretion and will not do enough to protect the environment.”

The proposed rules have recently drawn harsh criticism for allowing land – any land – with wetlands to be developed.

Tate, however, said the county has many parcels that were created before wetlands rules even existed. And though development is allowed on any parcel, it’s restricted.

The county has also long had a policy that legally created lots can be developed, despite the environmental constraints found on some properties. Even so, Tate said the new rules do limit development.

“We have a lot of ability within the ordinance to make sure that the property is developed with the least impact,” he said.

“If you come to the counter and propose a very large 10,000-square-foot house, but because it’s so big it’s going to intrude into the buffer, we may respond ‘You may have bought the wrong piece of property,’ and reduce the house (size) to avoid impacts to the critical area.

“If you have a property that is entirely covered with wetlands or buffer or both, the ordinance will allow you to use that property to construct a modest sized home,” he said.

Such an approach is reasonable, Tate said.

“Until the county or state is prepared to purchase that property, that’s the way it’s going to be,” he said.

Restarting the rewrite of the rules from scratch is not an option.

Work on the rewrite of the county’s critical areas ordinance got underway in early 2005 and the county has spent hundreds of thousands of dollars on the effort since then. Multiple public hearings have been held over the past two years on Whidbey and Camano islands.

Tate said the wetlands rules are just one piece of the county’s update of its critical areas ordinance.

After the wetlands rules are finalized, just one piece of work remains: a rewrite of the rules covering fish and wildlife habitat conservation areas. The other components of the critical areas ordinance — farming rules, regulations on aquifer recharge areas, geologically hazardous areas, and frequently flooded areas – have all been finished.

The county’s new farming rules, however, are still tied up in a lawsuit filed by WEAN.

WEAN said the controversial farm rules, which were completed in fall 2006, were inadequate and challenged the regulations before a state growth hearings board.

When the growth hearings board sided with the county, WEAN filed an appeal of the rules in Thurston County Superior Court.

A court review of the farm rules was then put on hold as WEAN waited for a decision in the state Supreme Court case between Skagit County

and the Swinomish Tribe that WEAN said would help its battle against Island County’s farming rules. The tribe said Skagit County’s critical areas rules did not go far enough in protecting environmentally sensitive lands.

In October, however, the high court ruled that Skagit County’s “no harm” standard of protecting wetlands and other critical areas was sufficient, and WEAN recently decided to move forward with its superior court lawsuit against Island County.

The planning commission is scheduled to continue its deliberations on the county’s new wetlands rules through mid-December. A vote on the rules is expected on Dec. 18.

“They are going to makes some changes; there is no doubt,” Tate said.

County commissioners are then expected to take up the new rules in early January.

But they won’t be seeing the regulations for the first time; Tate said the board has received numerous updates and briefings as the regulations were being rewritten.

“Nothing is going to be new to them, so there’s not much of a learning curve. They may be able to proceed very quickly,” Tate said.

Since the new rules will take effect 90 days after they are approved by county commissioners, the earliest the new rules could be on the books is in April.