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Final Decision and Order, Island County wetlands rules

Final Decision and Order, Island County wetlands rules

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Published by southwhidbey
The Western Washington Growth Management Hearings Board issues its ruling on Island County's wetlands rules in response to a challenge by WEAN and CARE.
The Western Washington Growth Management Hearings Board issues its ruling on Island County's wetlands rules in response to a challenge by WEAN and CARE.

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Published by: southwhidbey on Nov 22, 2008
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10/16/2011

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Final Decision and Order
 
Western WashingtonCase No. 08-2-0026c Growth Management Hearings BoardNovember 17, 2008 319 7th Avenue SE, Suite 103Page 1 of 88 P.O. Box 40953Olympia, Washington 98504-0953Phone: 360-586-0260Fax: 360-664-8975
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BEFORE THE WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARDCAMANO ACTION FOR A RURAL ENVIRONMENT(CARE) AND WHIDBEY ENVIRONMENTAL ACTIONNETWORK (WEAN),Petitioner,v.ISLAND COUNTY,Respondent.Case No. 08-2-0026c
FINAL DECISION AND ORDERI. SYNOPSIS
The Whidbey Environmental Action Network (WEAN) and Camano Action for a RuralEnvironment
(CARE) challenge various aspects of Island County’s new wetland protection
measures adopted by Ordinance C-63-08 and which are codified at ICC17.02A. The
County’s new wetland protection measures include provisions for determining wetland
buffers based on wetland type, intensity of adjacent use, and function of the wetlands to beprotected. Both WEAN and CARE argue that the buffers established under theseprovisions will not protect all wetland functions, particularly water quality and habitat. Forthis reason, among others, CARE and WEAN contend that this system violates RCW36.70A.060(2), the requirement to adopt regulations to protect all the functions and valuesof wetlands, and RCW 36.70A.172(1), the requirement to include best available science(BAS) in the formulation of these regulations.CARE and WEAN are especially concerned that once a buffer, especially for low intensityuses, has been established, if increased development occurs on the property in the future,the buffer will not be able to be increased. The Washington State Departments of Ecology(Ecology) and Community, Trade and Economic Development (CTED) - agencies chargedwith providing cities and counties recommendations based on BAS for developing criticalarea regulations -
filed an amicus brief that supports the County’s buffer determination
 
 
Final Decision and Order
 
Western WashingtonCase No. 08-2-0026c Growth Management Hearings BoardNovember 17, 2008 319 7th Avenue SE, Suite 103Page 2 of 88 P.O. Box 40953Olympia, Washington 98504-0953Phone: 360-586-0260Fax: 360-664-8975
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system and maintain that it is consistent with their
state agencies’
recommendations. TheBoard finds that CARE
and WEAN’s concern is mitigated by the County’s
provisions forbuffer averaging, permits are required for road building that require the functions and values
of wetlands be protected, and the County’s past history of relatively li
ttle clearing and
grading in and near wetlands. Also, a comparison of the County’s buffers to Ecology’s
recommended buffer widths, which are based on BAS, show in a very few instances that the
County’s buffers
are
smaller than the Ecology’s recommendation
s, and the majority ofbuffers
would be the same or larger. The buffer system’s favorable comparison withEcology’s also diminish CARE and WEAN’s arguments that
Island
County’s buffer system
does not protect terrestrial wildlife and water quality.Anothe
r major concern for CARE and WEAN are the Ordinance’s reasonable useprovisions. Here, the County’s definition of existing use includes both legally esta
blisheduses, which conform to the current zoning code and those which now do not. This definitioncauses the reasonable use provision not to include BAS considerations or protect thefunctions and values of wetlands. However, the Board finds the other portions of the
County’s reasonable use provisions are based on mitigation sequencing supported by BAS.
 The Board also finds CARE has not carried its burden of proof that the science that IslandCounty prepared for analyzing what changes its protection measures needed, known as the
Phase 1 and 2 Reports 
are not BAS. The Board finds these reports are consistent with thecriteria for BAS included in WAC 365-195-905. CARE also failed to carry its burden that
several of the County’s wetland policies did not include BAS.
The Board also finds that wedo not have jurisdiction over
CARE’s challenge to
 
the County’
s Wetland Guide because itwas not adopted by the County as a development regulation.WEAN also challenged
the County’s failure to adopt a landscape
-based approach toprotecting wetlands. Here, the Board concludes that due to lack of information available onwildlife corridors and the amount of effort it would take to institute such an approach by thedeadline imposed by RCW 36.70A.130, the failure of not adopting a landscape approach is
 
 
Final Decision and Order
 
Western WashingtonCase No. 08-2-0026c Growth Management Hearings BoardNovember 17, 2008 319 7th Avenue SE, Suite 103Page 3 of 88 P.O. Box 40953Olympia, Washington 98504-0953Phone: 360-586-0260Fax: 360-664-8975
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not clearly erroneous. Additionally, the Board finds that WEAN has not carried its burden to
prove that the County’s wetland protection measures are noncompliant because they do not
allow for adequate vegetated buffers, lack appropriate criteria for making bufferdeterminations based on spatial considerations, failed to include adequate provisions toprotect wetlands and their buffers from the impacts of pesticides, herbicides, and pets, anddo not include requirements for permanent fencing.
Further, WEAN’s allegations that the County’s definition of mature forested we
tlands do notcomport with BAS is not supported by the science in the record. Because the science in therecord is conflicting,
the County’s system for determining buffers for mature forested
wetlands is not clearly erroneous.
The Board rejects WEAN’s claims that the Ordinance’s monitoring and adaptive
management program does not comply with the GMA. The Board finds
that the County’sadaptive management system is consistent with Ecology’s advice, provides for transparency
for its regulatory decisions, and will assist the County in evaluating the effectiveness of itsregulations.
There are two other areas besides the County’s reasonable use definition where th
e Boardfinds noncompliance.
One is in regard to the County’s Rural Stewardship Plans (RSP).
T
he County’s program allows property owners to reduce their intensity rating with the
adoption of an approved RSP without requiring monitoring of these plans. The other is the
County’s arbitrary limit of 25 percent on buffer expansion. The Board finds the
se provisionsare not based on BAS and potentially will not protect the functions and values over the long-term.

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