Analysis on CAO Issues in San Juan County

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Published on Saturday, 02 August 2008 08:00

The following analysis was prepared by former County Commissioner John Evans in response to recent invitation for input to the County on the CAO.  Mr. Evans notes that "the Critical Areas Advisory Committee is not of one mind on how to address critical areas under GMA.Fundamentally this is correct. There is agreement on some aspects and not on others."   BACKGROUND: ONE VIEW   Ron Hendrickson, County staff and some committee members see the only road to GMA compliance as implementing, through regulation, what the “best available science” reports outline as the “ideal” situation for the identified critical species of fish, birds, insects, plants and animals.Invariably the “ideal” takeaway from the science reports is that species should be isolated from human contact using a critical habitat designation and extensive “buffers.”   It is instructive to note that attorneys for some participants in the Skagit County critical areas process advocated this position, of returning the significant portions of the Skagit County landscape to pre-European conditions. The Washington State Supreme Court in the Swinomish decision ultimately ruled against that position.While legal arguments and case law of what is or is not compliant with GMA was subject to interpretation by planners and interested parties, the State Supreme Court decision is the final say.   BACKGROUND: ANOTHER VIEW   Other committee members believe the legislature was clear in its instructions under the law when it provided direction to counties and cities planning under GMA.The direction was for Critical Areas Review Committees, the Planning Commissions and the local legislative authorities to “consider” the “best available science” when recommending and drafting land use restrictions for critical areas.In other words, science was not to be ignored in the process.   Further, the State legislative instruction was to “balance” proposed regulation between the species and their critical habitats and other GMA related guidance such as attention to private property rights, the local economy, protecting an owners right to the reasonable use of their property and housing affordability.   BEST AVAILABLE SCIENCE   One point of this narrative is call attention to the focus of the “best available science.” After reading hundreds of pages of the selected science reports the county staff has provided, it is clear that the studies always conclude with an analysis of what the “ideal” conditions would be for the species.Further, the scientist’s reports will always indicate that the species will do best if there is no direct or indirect human contact what so ever.   From our Committee’s communications from State agencies, it is also clear that the Washington State Department of Fish and Wildlife, the agency that funds much of the science, will always advocate for the fish, plants and animals, leaving it to the local legislative authority to achieve a reasonable level of balance between the natural and the man-made environments.   The legislature did not anticipate that jurisdictions would simply adopt regulations based on the science without consideration of other factors.In the Swinomish case, adoption of the science would have meant the removal of the dikes, extensive buffers and the loss of some of the most fertile farmland in the state.The Supreme Court ruled that this was not required under GMA.   A BROADER VIEW OF THE “BEST AVAILABLE SCIENCE.”   The Friday Harbor Labs hosted a major international academic and science based retreat on the science of “resilience” as it pertains to marine species.(I have requested that the science reports from this meeting be included for the committee’s record.)The bottom line of all the presentations was that marine species populations respond directly to environmental conditions.   Marine fish, plant and animal populations are “resilient” and fluctuate with naturally occurring changes in water temperature, various diseases cycles, marine predators, pollution, fishing pressures, and habitat changes.It is easiest to think of the species “resilience” concept as a rubber band that can go from the “ideal” conditions for the species…no tension… to a point where the rubber band brakes and the species disappears.This concept is important because it expands the decision process from one of achieving the “ideal”…no human contact…to a balanced approach of species protection that accommodates some human interaction.   HOW THESE TWO POINTS OF VIEW HAVEPLAYED OUT ON THE CRITICAL AREAS ADVISORY COMMITTEE     The Committee began its process with a pilot project to decide how to protect forage fish…an identified species of concern in Puget Sound.A report from the Friends of the San Juans had identified the 12 miles of beaches in San Juan County where forage fish lay their eggs.The committee voted to designate these beaches as critical habitat.   The science reports indicated that the forage fish egg sites need protection from hard armoring and bulk heading of the spawning beaches and would benefit from the shade that comes from trees hanging over the beaches.The committee voted to propose additional shoreline regulations to keep beaches free of armoring and bulk heading and to preserve the overhanging trees.The committee felt that a failure to improve the regulatory protections would not be compliant with GMA.These votes were unanimous…. so far so good.   The science also indicated that silt and pollutants from the uplands might possibly have some affect on the forage fish nests. The reports recommended shoreline buffers of natural vegetation of 150 feet to 250 feet.The committee deliberated and discussed the massive amounts of naturally occurring silt that storms bringing up from the seabed to the beaches. A majority on the Committee felt that the minimal amounts of silt from uplands was of little consequence compared to naturally occurring events. The Committee discussed the fact that San Juan County Public Health regulations have largely eliminated contamination from human waste and the implementation of the new storm water regulations that greatly reduce upland runoff.   The committee also discussed the legal and County staff implications of extending the buffers from the current 50 feet to a new setback of 150 feet or more. A major issue of concern for expanding the existing buffers is that the change would cause most existing shoreline homes to be designated as legally non-conforming uses.   The committee decided, that on balance, the small possibility of some additional silt escaping from a 50 foot verses a 150-250 foot buffer compared to naturally occurring silt events, and with the filtering capabilities of 50 feet verses 150-250 feet for other types of pollution, that 50 foot buffer was adequate.   After considering that the “best available science” for silt and pollution was far less compelling and immediate than armoring and shade, the Committee, on a split vote decided that keeping the 50-foot buffer as it is now and added additional tree and brush removal regulations to further protect the integrity of the 50 foot native vegetative buffer. This decision avoided the legal minefield of the non-conforming issue for existing shoreline homes. The committee felt the forage fish are “resilient” enough to deal with the minimal level of human presence.   It was also noted that surf smelt are still harvested with nets under permit from the Washington State Department of Fish and Wildlife.WSDFW apparently feels the forage fish resource is “resilient” enough to allow commercial and recreational fishing of the species.   SUMMARY   I hope this report is useful and may give some basis for the future direction of the process for designating and regulating critical areas and buffers under GMA. It is my opinion that if the Critical Areas Citizen Advisory Committee, the Planning Commission and the Council fails “consider” the “best available science” and “balance” the science with a common sense application to conditions in San Juan County, we will be in court for years.The legislature and GMA do not require that we create separate wilderness zones for wildlife.The Swinomish decision made this crystal clear.   I believe that the Committee’s decision on forage fish is an example of what we are being asked to do in this process…to seriously “consider” the “best available science” and to “balance” the needs of the species and people under GMA.It would be helpful if the whole committee and the planning department were in agreement.At this point, they are not.     Respectfully,   John Evans                                              

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