Point/Counterpoint: The San Juan County Critical Areas Ordinance

Proposed changes to the county’s Critical Areas Ordinance would have significant impact on how we build, and where we build, in the San Juans. In these guest columns, Gordon White of the Department of Ecology and attorney Dennis Reynolds argue the science behind the proposed changes.

GORDON WHITE: 'Ecology’s wetlands guidance has a proven, practical track record'
While San Juan County works to update its critical areas ordinance, it’s time to set the record straight.

The July 30 SanJuanJournal.com, “Experts: County should focus regulatory energies on upland areas rather than shorelines,” and a recent letter to the editor were misleading regarding the Department of Ecology’s role in developing and providing wetlands guidance to local governments and the legitimacy of the agency’s scientific research.

The state Growth Management Act, amended in 1995, requires the state’s 320 cities and counties to base their regulations for protecting five types of environmentally-sensitive areas including wetlands and fish and wildlife habitat on “best available science.”

Local governments and the state Department of Commerce implement the GMA, not Ecology. Ecology, however, has expertise in managing and protecting wetlands. We knew most local governments didn’t have the resources to develop a science-based standard for protecting wetlands. To help local governments meet GMA requirements without reinventing the wheel, Ecology got a federal grant in 2002 and spent three years crafting wetlands guidance. We scanned over 15,000 scientific articles and summarized another 1,000 related to protecting and managing wetlands.

Our guidance underwent the most complete, rigorous review of any wetlands-related documents produced for Washington. Our guidance documents were reviewed by independent peer-reviewers from different scientific disciplines. Our drafts were available for public review and comment. We prepared written responses to every comment we received. Claims we withheld information are false. Ecology must follow copyright laws for information we used and we found legal ways to make it available.

Ecology has provided training on wetland science to more than 1,500 people from local, state, federal and tribal governments and business. Over 100 local jurisdictions have already based their wetland ordinances on our guidance. Growth Management Hearings Boards have upheld our guidance as best available wetland science.

Even though local governments are not required to adopt our guidance documents, under GMA they do have to include best available science when adopting critical areas ordinances. We support cities and counties who develop their own science-based wetlands guidance. Island County did this and Ecology helped defend it when a local environmental group appealed its ordinance. We think it’s no surprise that after all of Island County’s extensive independent work, its wetland rating and buffer system nearly mirrors Ecology’s.

Wetland buffers often are controversial when local governments seek to adopt critical areas ordinances. We agree generic “one size fits all” buffers are inappropriate for San Juan County or anywhere else in the state. Our guidance recommends different buffer widths based on individual factors, including narrower buffers for rural land uses than urban ones. These recommendations give landowners flexibility to use their property and still protect the resource.

Although we don’t implement GMA, Ecology does approve local land-use regulations in marine shorelines under the 1972 voter-approved Shoreline Management Act. San Juan County will soon be working on its locally tailored piece of the statewide shoreline master program. Under SMA, the program will require protection of critical shoreline areas equal to or greater than GMA requirements.

— Gordon White is program manager for the Washington Department of Ecology’s Shorelands and Environmental Assistance Program. He oversees statewide activities to help communities manage their shorelands and wetlands resources. More information about

Ecology’s wetlands program is available online at www.ecy.wa.gov/programs/sea/wetlands/index.html

DENNIS D. REYNOLDS: 'One size does not fit all in buffers for upland wetlands and marine shoreline areas'
Ecology has stated both in writing and orally to San Juan County officials and citizens that its compilation of science for wetland and marine buffers is “the” best available science.

According to Ecology officials, its science has been “vindicated” by the Growth Management Hearings Board and by the courts. The agency has also stated that its science is “peer-reviewed,” so beyond reproach.

Some of Ecology’s employees or officials have openly criticized Dr. Kenneth Brooks, who stated that Ecology’s science is not truly peer-reviewed as that term is commonly understood, nor is it necessarily the “best available science” for San Juan County.

First, it is important to understand the standard peer review process. The process is not complicated:

— An author submits a manuscript to an independent editor of a journal.

— Typically the author nominates one or two peer reviewers that are familiar with the subject matter. However, the editor is responsible for selecting the peer reviewers. Usually one or two reviewers are scientists unknown to the author. Editors attempt to obtain at least three peer reviews.

— The comments of the reviewers are considered by the editor, who then determines whether to accept the manuscript for publication as submitted (a rare decision), to require minor revision, to require major revisions, or to reject the publication.

Ecology’s approach to “peer review” has a number of problems. One, Ecology believes that it meets peer review requirements simply because some of the publications in its Best Available Science, or BAS, list have been peer-reviewed. Ecology relies upon its list of BAS to make interpretations, which result in sweeping regulatory prescriptions for large buffers for both wetlands and marine areas. It is this interpretation and application which Dr. Brooks challenged as not having been peer-reviewed, not necessarily all of the underlying studies.

While it is true that Ecology has asked the opinions of some outside companies or consultants, the record discloses that there is a select set of consultants whose names frequent Ecology’s publications. These “independent reviewers” and personnel from other regulatory agencies have “peer reviewed” Ecology’s work. The perspective of these parties is solely environmental protection. The selected companies or consultants make a living providing environmental studies for public agencies, including Ecology. The Common Sense Alliance believes that this is not truly independent peer review.

The bottom line is that Ecology’s approach to peer-review lacks the independent judgment constituted of both reviewers and an editor.

What about Ecology’s “science”? Both the courts and the Growth Management Hearings Boards have stated clearly that there is no “bright line definition of BAS” (Ferry County v. Concerned Citizens of Ferry County, state Supreme Court Case No. 75493-4 Nov. 17, 2005).

BAS is always determined on an individual basis, not by generic studies such as Ecology’s BAS list. Local circumstances must always be taken into account. No court has ever said Ecology’s BAS is the only science and must be used to the exclusion of other views without regard to local circumstances.

Ecology makes a point of saying that protection of critical areas is a requirement of the Growth Management Act unrelated to a balancing of its goals. That is to say “the land comes first.” That is not what the courts have said. Here is the law set out in full context:

The county is correct when it asserts that, under the GMA, it is required to balance the various goals of GMA set forth in RCW 36.70A.020. It is also true that when balancing those goals in the process of adopting a plan or development regulation under GMA, a local jurisdiction must consider BAS regarding protection of critical areas.

This does not mean that the local government is required to adopt regulations that are consistent with BAS because such a rule would interfere with the local agency’s ability to consider the other goals of GMA and adopt an appropriate balance between all the GMA goals. However, if a local government elects to adopt a critical area requirement that is outside the range of that BAS alone would support, the local agency must provide findings explaining the reasons for its departure from BAS and identifying the other goals of GMA which it is implementing by making such a choice. (WEAN v. Island County, et al., state Supreme Court, 2007.)

There is yet another problem with Ecology’s BAS. Ecology routinely ignores the requirement of the GMA to analyze proposed regulations for consistency with statutory and constitutional standards. In an opinion issued by the Court of Appeals, Division II, on Sept. 9, 2009 (Case No. 38017-0-II), the court held, “the decision to require a setback buffer for the entire marine shoreline of Kitsap County is reversed and this matter is remanded for consideration of the Shoreline Management Act.”

Kitsap County relied upon the recommendations of Ecology and the state Department of Fish and Wildlife when imposing the 150-foot buffer which the court struck down. Neither the Kitsap County Board of County Commissioners, agencies or the state considered or listened to public concerns with the legality of the state agency approach. Now, Kitsap County must start over. And it is exposed to a class action for damages for a temporary regulatory taking by imposition of its illegal generic shoreline buffers.

Does anyone believe that the Department of Ecology will reimburse Kitsap County for the cost associated with commencing the regulatory process over or for any judgments that may be entered for a regulatory taking?

The Common Sense Alliance believes that Ecology should answer this question for San Juan County before it continues to insist that local officials are “obligated” to impose Ecology’s generic “one size fits all” buffers for both upland wetlands and the marine shoreline area based upon its BAS.

— Dennis D. Reynolds is an attorney based on Bainbridge Island. He has 36 years of experience in federal, state and local land development regulations. He wrote this column for the Common Sense Alliance, www.commonsensesanjuans.com.

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