Seattle Press on Line - Property Rights Advocates Hail Shoreline Regulation Delay

Salmon Protection Suffers Setback

Property Rights Advocates Hail Shoreline Regulation Delay

By Patricia Stambor

Sep 13, 2001 -- In late August the Shorelines Hearing Board issued a split decision that effectively threw out five years of work by the Department of Ecology (Ecology) in developing updated guidelines for local shoreline master programs under the Shoreline Management Act. While the Hearings Board did not overturn the substantive language of the rules that reflect advances in knowledge of how urban growth and development affect shorelines and fish, it did rule that Ecology overstepped its authority by incorporating a federal law that protects endangered fish species.

Property rights advocates--among them, developers and business organizations, shoreline residents, and many farmers--are declaring victory. In lawyers' terms this is a technical win that delays implementation of the new rules by forcing Ecology to once again go back to the drafting table.

Since 1995, when the legislature ordered Ecology to update the guidelines, organizations such as the Association of Washington Business (AWB) and the Building Industry Association of Washington (BIAW) have demanded time-consuming studies in order to delay the new guidelines. During the period of delay they were able to move forward on developments that might have been barred under new guidelines. Property rights advocates have long feared they would be burdened by more stringent guidelines that would limit development on shorelines, inhibit the building of bulkheads and docks, and hold them responsible for shoreline habitat management.

Although the Hearing Board's decision addressed nine discrete issues, the biggest setback for Ecology was the determination that it did not have authority under Washington's Shoreline Management Act (SMA) to incorporate the standards of the federal Endangered Species Act (ESA).

Washington's Shorelines Management Act

Washington's Shoreline Management Act (SMA) was enacted through a 1971 citizen's initiative. The SMA is one of the most effective environmental laws that prevents harm to the state's shorelines from uncoordinated and piecemeal development. The SMA applies to all marine waters and freshwater streams and lakes that meet certain criteria, including uplands (lands within 200 feet from the water's edge) and associated wetlands, river deltas, and 100-year floodplains.

Under the SMA each city and county adopts a Shoreline Master Plan (SMP) tailored to the unique geographic, economic, and environmental characteristics of the community. All master plans must follow the state guidelines. The Department of Ecology is the agency responsible for developing SMP guidelines. All local SMPs must be approved by Ecology before they become effective.

In 1995, the state legislature passed ESHB 1724, which requires local governments and municipalities to periodically update and integrate their SMPs in accordance with local growth management plans and regulations.

The SMA strongly supports public participation and involvement in decisions that affect Washington shorelines. A Shorelines Hearing Board is a quasi-judicial body composed of knowledgeable citizens who decide on appeals of shoreline permit decisions. Any aggrieved party, including ordinary citizens, can appeal a shoreline permit before the Shoreline Hearings Board. (See June 22, 2001 online edition for an example of this.)

In an attempt to address the desire of citizens and local governments to minimize confusion in applying the new federal fisheries standards, Ecology concluded that the most efficient approach towards protecting the ecological functions of shorelines was to incorporate and apply ESA standards. The department spent five years and endless staff-hours managing and participating in a public rule-making process for developing new guidelines, only to have them challenged by many of the same people and organizations who participated in the process.

Ecology spokesperson Sheryl Hutchison says the department has until September 26 to decide whether to appeal the Board's decision or to rewrite the guidelines. For now, she says the old rules are in effect and the clock has stopped for updating master programs. "Either way, any new guidelines will not go into effect for at least another year. We will have to do rewrites and hold another series of statewide public meetings and hearings."

Seattle still needs SMP update

Although Seattle had already begun the ambitious process for updating its local Shoreline Master Plan (SMP) under the new guidelines, Tom Hauger of Seattle's Strategic Planning Office (SPO) says the "Hearing Board's decision has caused us to stop and think about what we are doing."

"Either we will move ahead by updating the master program based on the old guidelines, do the updates based on the substantive language Ecology anticipates will be validated by the Hearing Board, or do nothing and wait for the new rules."

Hauger says any direction they take will come from Mayor Schell's office. In the meantime, he says, they intend to continue meeting with a citizen advisory group and will be taking inventory on information necessary for updating Seattle's SMP.

Longtime shoreline activist Benella Caminiti remembers clearly Seattle's first efforts to draft an acceptable SMP thirty years ago. The Shoreline Management Act was passed in 1971 but it wasn't until 1976 that Seattle had its SMP. There were six drafts in five years, each requiring a new round of public hearings and rewrites.

"There was so much intervention and argumentation in those five years. Delay, delay, delay. In the meantime, those who wanted could vest their shoreline interests and not be touched by the rules."

Caminiti says she has every reason to believe "delays" are the intention of those challenging the new guidelines. She is also not surprised that Mayor Schell is the chief decision-maker on how Seattle develops its rules today, just as he was thirty years ago as Seattle's Director of Community Development.

Pat Sumption, Salmon and Water Committee Chair for the Sierra Club Cascade Chapter, concurs: "Delay is just allowing development to happen without rules." Sumption says that when a group of environmentalists met with the Mayor's salmon team, "they seemed to just talk the talk but wouldn't commit to walking it."

"Seattle officials have not proven they mean it when they say they want to improve fish habitat in streams and along shorelines." Sumption believes, as do other powerful Seattle environmental groups such as People for Puget Sound, that if Seattle can't set a good example and save its own spawning streams, it is not in a position to ask the rest of the state to do so.

Despite advances in science over the past thirty years that have expanded our knowledge of how development and urban growth degrade shorelines and adversely affect fisheries, it appears salmon will be swimming up a slow moving legal and bureaucratic stream for at least one more year.

How long endangered salmon species can delay is not known. If they do stop running, it appears that it may have more to do with a legal procedural argument rather than with one of any substance.

Reader Comments

Discuss this article in the forums!

No comments yet!