Beyond beauty, shoreline environments contain vital ecosystems. (Click to enlarge)
Kitsap Sun photo

Oh, yes, lakes and a few streams are part of the picture.

Kitsap County commissioners last night appointed a 20-member citizen task force to take a central role in the planning effort. For the first time in county history, regulations will be based on ecosystem values. See the story I wrote for today’s Kitsap Sun listing the members.

Similar planning efforts are under way in Kitsap’s cities as well as various communities throughout the Puget Sound region. I wrote a story for the Kitsap Sun Feb. 27 regarding the effort for our cities.

In the past, shoreline regulations were based on existing land uses. Buffers — including the current 100-foot buffer for rural areas — were uniform throughout the entire county. Previous rules never took into consideration the particular types of shoreline or their ecological values. For example, an estuary with a highly productive marsh and a stream running through it was treated exactly the same as a rocky outcropping pounded by waves.

The task force will have the interesting task of figuring out ecosystem functions for various segments of Kitsap County’s shoreline. We know that sloping beaches can be important to migrating salmon, that certain kinds of sand and gravel support forage fish and that a multitude of creatures may reside in nearby upland areas.

But here’s the big question: Why does development need to stay back from the shoreline, and how far back is far enough. I think we’ll see during this planning process that it all depends on what one is trying to protect. That, in turn, depends on the flora and fauna supported by the specific shoreline type.

Kitsap County now has a basic “inventory” of man-made and natural features found along the shoreline. This inventory was created by a team of biologists who walked the entire waterfront — both on the east side of the county fronting onto Puget Sound, and on the west side fronting onto Hood Canal. Coupled with additional information being compiled, this inventory will form the basis of discussions in the coming months.

One of the new task force participants is Tom Nevins, a member of the Kitsap County Planning Commission who lived through battles over the county’s Critical Areas Ordinance. When done, the county was immediately sued by both property-rights advocates and by environmentalists. Under orders from the Central Puget Sound Growth Management Hearings Board, the county commissioners established 100-foot buffers for rural shorelines.

But the battle was not over and eventually got tied up in the confusion over whether the Critical Areas Ordinance or the Shorelines Master Program should apply to shoreline properties. A bill passed by the Legislature this session attempts to resolve the problem for the second time. I wrote about the bill in Saturday’s Kitsap Sun.

Nevins told me that he hopes for a more orderly process this time around. I believe things will go more smoothly if those involved will look for common ground using common sense. Property rights are in play, but so are public interests in shoreline ecosystems.

The final piece of the puzzle is the appointment of a professional facilitator to lead the task force on its quest. That appointment is likely to come in two weeks, with the first meeting in early April.

Kitsap County Department of Community Development has now ramped up its new Web page for the Shoreline Master Program Update, which is designed as conduit for information.

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This is a summary judgment hearing, meaning that the judge can rule if there are no substantial disagreements on critical facts in the case.

The key players in the case are Dennis Reynolds, representing the Tahuyeh Lake Community Club (TLCC); Matt Kernutt, representing the Washington State Department of Fish and Wildlife; and Superior Court Judge Jeanette Dalton

I outlined most of the major issues in a story in Monday’s Kitsap Sun.

This live-blog software, called Cover It Live, allows for questions and comments. I will approve the comments and answer the question as time allows during the hearing if there are pauses in the action.

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I outlined the major legal issues in a story in today’s Kitsap Sun.

You may wish to return to this blog tomorrow, when I will give “live blogging” a try for the first time. At that time, you will be able to watch as I write from the courtroom, providing blow-by-blow arguments as they unfold before the judge.

Here’s the key question: If you buy a piece of property on a lake, do you have the right to open it up for public access?

When this issue first came up, I thought the outcome could set a precedent for other lakes where anglers would like to build a boat launch. But there are many aspects of this issue that are relatively unique. Here are a few:

— The question of whether Lake Tahuyeh was a natural lake or a bog.
— The point that Lake Tahuyeh was not a navigable waterway, which means the state does not own the lake bottom.
— The idea that the lake was changed substantially when it was dammed up.
— The fact that the state has never contributed to the cost of maintaining the dam or other operations on the lake.

Of course, attorneys for the state will argue that the public gained access to the lake in 1939 before most homes were built and that public rights to use the lake cannot be extinguished by any of these issues.

It will be interesting to see how these various points are argued in court.

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Scientists are the first to acknowledge that science is a messy pursuit. Working hypotheses don’t always work out. And even when findings do reveal some new clarity about nature, there can be multiple ways to interpret those findings as well as new questions to be answered. Understanding takes time and effort.

But if science is messy, the application of science to public policy is downright dirty.

That’s what we see in climate change, where the big challenge for scientists is to make predictions about how climate will behave in the future by considering past changes along with the physical forces that are taking place.

The challenge for policy-makers involved in the climate debate is to understand the risks and uncertainties and then to act appropriately, given political forces working in various other directions.

Trying to protect the natural function of shorelines is a similar challenge, but it ought to be much simpler. We have a history of land use along the shorelines and a fairly good understanding of the physical processes involved.

Again, the challenge for policy-makers is to understand the risks and uncertainties about shoreline alterations and to act appropriately. In this case, political forces include people who have no apparent understanding of property rights, people who believe government has no right to regulate land use, and a large number of people trying to seek a reasonable balance that protects ecosystem functions as well as land-use opportunities.

That brings me to a letter I received this week. Written by 14 scientists, the letter is critical of an analysis by Don Flora, a retired forest researcher who has taken a keen interest in shoreline science.

In his analysis, Flora could find no statistical relationship between “stressors” caused by human construction and “ecological function,” measured by natural factors. Flora admits that his focus was narrow. He also admits that his findings do not mean that man-made alterations to the shoreline cause no harm to the ecosystem — but he seems to say that it’s a short leap to that conclusion. See my story from Oct. 26 and my Water Ways entry from Oct. 27.

Many scientists and others familiar with Puget Sound shorelines were greatly disturbed by the suggestion that bulkheads and other structures cause no harm, which is where some property-rights advocates have taken Flora’s findings. Fourteen scientists responded with a letter explaining why Flora’s analysis and conclusions were all wrong. See my story in yesterday’s Kitsap Sun.

In forwarding the letter to the Puget Sound Partnership, one of the signers, Megan Dethier of Friday Harbor Laboratories, offered this comment about Flora’s report:

“Many regional scientists immediately took issue with this misrepresentation of science, and felt that a response was warranted to help ensure that decision makers, planners, managers, and the public realize that this report was highly misleading, and that it is important to distinguish real science from pseudoscience. After much discussion about the best tone, length, and approach for this response, we have produced the attached brief document (I also attach the original Flora report).

“We (the signers, plus the MANY agency scientists who helped with it and agreed with it but were politically constrained from signing it) are unsure of the best method to get this document “out”, but most agreed that PSP is good at that kind of thing, hence this email to you. Our hope is that this might be a little piece of “ammunition” for municipalities, counties, etc. fighting off the sort of pseudoscience barrages characterized by Dr. Flora’s paper.”

Kitsap County is forming a task force to make recommendations to update the county’s shoreline regulations. Several other counties and many cities are going through this process, as required by state law. I believe smart people assigned to the Kitsap panel and others will be able to review the science and make reasonable recommendations.

A couple of things come to mind. First, not all shorelines are the same. That may be obvious, but we have rocky shores where large waves crash, as well as backwater estuaries where plants and animals are barely affected by currents. The need for buffers, as well as buffer widths, probably varies under these conditions.

Second, it is only common sense that bulkheads and docks have an effect on ecosystems. We should try to understand the effects of not only a single structure in an otherwise natural area but the effect of an entire shoreline dominated by structures. That’s the cumulative effect.

For your consideration, here are Don Flora’s original report, the letter from the 14 scientists and another interesting analysis I received from Richard Nerf, who has experience with statistics.

Don Flora report PDF 185 kb)

Letter from 14 scientists (PDF 46 kb)

Richard Nerf critique of Flora report (PDF 435 kb)

Don Flora’s response to Richard Nerf

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More than 100 people with interest in shorelines have expressed a willingness to serve on the task force. From that number plus others not yet identified, shoreline planners hope to create a group of about 25 people to represent various interests and expertise.

As part of the selection process, those interested will be asked to fill out an application form. It is the county’s standard volunteer form enhanced with a focus on shoreline issues. Patty Charnas, the county’s natural resources manager, had hoped to post a notice on the county’s Web site today and get the applications out to those who signed up with their e-mail.

Meetings are being planned every two weeks, with the first meeting tentatively scheduled for Feb. 25 at Island Lake County Park. Work is scheduled to continue through June of 2011. The evening meetings are expected to last about three hours, and anyone may observe.

Meanwhile, on a related issue, Washington Department of Ecology is trying to quell an attack by property-rights advocates who say the agency is out to eliminate non-conforming structures along the shoreline.

What stirred people up the most was a slide show (PPT 1.9 mb) given by state shoreline managers to local planners and others in 2007. One slide lists the “basics” of nonconforming structures and uses, which are those that don’t meet the latest regulations, including setbacks and buffers:

• Lawfully established or built prior to effective date of SMA/SMP
• Do not conform to current SMP
• Use – no longer allowed in environment
• Structure –inconsistent with bulk, setback, height, density
• Not consistent w/ community vision
• Can continue to exist
• Long term goal: eliminate
• Nonconformity cannot increase
• Abandoned: NC status expires
• Reality: many exist for a long time

Some people have focused more on the item that says “Long term goal: eliminate,” and less on the one that says “Reality: many exist for a long time.”

Gordon White of Ecology was concerned enough about what he called misleading statements that he wrote a blog item on EcoConnect.

White says:

“Claims are being made that Ecology and local governments want to intrude on the use and economic value of private property, stifle the economic vitality of our communities, and infringe on your constitutional rights — all in the name of effective environmental conservation.

“Many of these concerns are being voiced in a way to create alarm rather than seeking to understand the facts of the situation. And, unfortunately, some pretty important facts are being inaccurately portrayed.”

Read the blog item for the full discussion. After talking to people on all sides of the issue, I believe it is important for property owners to protect their rights, which means making sure that they don’t abandon their property. Property owners should understand that the established uses of their property cannot be reduced by government without compensation, unless there are health and safety concerns.

On the issue of expanding your house or yard, much will depend on local ordinances — which is why shoreline planning is no small thing. I understand that most jurisdictions allow expansion away from or parallel to the shoreline or by building upward, so long as the structure gets no closer to the water. Is that a reasonable approach?

One area of concern is what happens if someone’s home is destroyed by fire. Can it be rebuilt?

Whatcom County, the first county to complete an update of its Shoreline Master Program (PDF 2.1 mb) under new guidelines, does allow for rebuilding:

“Non-conforming structures that are destroyed by fire, explosion, flood, or other casualty may be restored or replaced in kind if there is no feasible alternative that allows for compliance with the provisions of this Program; provided that, the following are met:

1. The reconstruction process is commenced within eighteen (18) months of the date of such damage; and
2. The reconstruction does not expand, enlarge, or otherwise increase the nonconformity, except as provided for in subsection (E) above or (H) and (I) below.”

This issue of destruction is worth keeping an eye on.

I would not be surprised if some individual Ecology officials would like to see nonconforming structures eliminated over time, but most understand the legal protections written into the Shoreline Management Act.

“People who work at the Department of Ecology are property owners, too,” spokesman Curt Hart told me. “Some of us are shoreline property owners. We don’t want people’s rights stripped any more than anyone else.”

Likewise, many shoreline property owners would like to improve the natural habitat and functions of their property to benefit fish and wildlife — as long as it is voluntary.

Regulations will continue to be written in an effort to protect existing shoreline functions. State and federal dollars probably will be used to improve habitat where feasible. But, no matter what the government does, the improvement or degradation of shorelines remains largely the choice of the property owner.

By the way, Ken Sethney, chair of Bainbridge Shoreline Homeowners, offers a useful discussion on this topic.

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Photo courtesy of Washington State Ferries

It’s worth mentioning here because Ecology is asking average people to photograph conditions related to the high tide and provide the exact time and location of the picture.

“The agency is interested in using these images to help document the coastal impacts our state is likely to face with increasing frequency as sea levels continue to rise,” Reeder says in a blog entry on EcoConnect.

Precise times for high and low tides vary by location, but one can get a pretty good estimate by going to the tide prediction Web site operated by the National Oceanic and Atmosphere Administration and drilling down to the closest community listed.

Pictures can be sent by e-mail to Ecology, placing “sea level rise” in the subject line. Folks are encouraged to include contact information, so Ecology can send a release form to allow publication of the photos.

Weather conditions, such as wind and rain, can affect localized flooding and related problems, which is one reason to get as many varied locations as possible.

Reeder’s blog states:

“Increases in global sea levels have been recorded by NOAA tide gauges for many years, and more recent observations have been collected by NASA satellites. The steady rise has been attributed to both a warming of the oceans and contributions from melting glaciers and land-based ice sheets. Climate modeling combined with these direct observations suggest sea level rise will continue well into the future with significant implications for Washington’s more than 3000 miles of marine coastline.

“Analysis conducted by the University of Washington’s Climate Impacts Group and the Washington State Department of Ecology show that increases in sea level in Puget Sound could be as high as 22 inches by mid-century, with upper estimates of more than four feet of rise by 2100.”

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“I’ve been here 10 years, and it happened one other time during that period,” said Doug Hinton, the ranger at nearby Dosewallips State Park. “I’m not really surprised given the long run of cold weather we’ve had.”

What we’re probably seeing is a layer of fresh water coming down from the Dosewallips River. Fresh water dominates the gradually sloping shoreline, and we know that fresh water freezes more readily that saltwater. A little farther out in Hood Canal, the fresh water tends to float on top of the heavier saltwater, forming a thin layer of ice.

Residents of other areas where quantities of fresh water flow into Hood Canal, such as Quilcene, also have seen thin layers of ice on the water.

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Shawn Ultican and Newton Morgan of the Kitsap County Health District were in a boat on Sinclair Inlet yesterday to take some marine water samples when the gray whale surfaced near them. They told me it was a rather delightful surprise.

The whale has now been around at least two weeks, seen by someone practically every day.
———

UPDATE, Monday, Dec. 7, 2:30 p.m.

Our gray whale is still hanging around. I just came from the Manette Bridge, where I saw the animal mid-channel off the end of the Turner Joy.
———

A gray whale has been observed in Bremerton’s Port Washington Narrows the last two days, and Joanne Jenks of Manette thinks it is the same whale she has seen about this time almost every year.

“This whale is having a love affair with the Turner Joy,” she tells me.

As I write this, folks at the Boatshed restaurant say they have been watching the whale much of the morning.

If past visits are any indication, the animal will stay in the area for at least a week. The Boatshed or shoreline on the Manette side, or off the end of the Turner Joy on the downtown side, would seem like good places to watch when the whale is milling around its favorite location.

The Manette Bridge is another good observation point, though you won’t be able to hear the whale blow if there is traffic on the bridge.

I’ve tried to find out if whale researchers have photos that could tell us if this whale is the same one that has been here before. It requires spotting some unusual markings on the animal, and a picture of the fluke (tail) can be helpful. So far, they’ve been unable to find photos from past years that are good enough for ID.

Here’s the story I prepared for today’s Kitsap Sun:

Gray Whale Spotted in Waters Off Bremerton

A gray whale with a special fondness for a winter trip to Bremerton has returned, reports Manette resident Joanne Jenks.

Jenks believes it is the same whale that has come to Bremerton each December or January for years — with the exception of last year, when the animal did not show up. Jenks feared the whale had died, but now it is back to its old pattern, she said.

Jenks believes it is the same gray whale, not only because of its timing but because it tends to stay in the same place off the Bremerton boardwalk and the Turner Joy, though it sometimes heads up past the Manette Bridge or out into Port Orchard Passage.

Customers at the Boat Shed in Manette watched the whale swim past the restaurant Wednesday, but it was back near downtown Thursday morning. By afternoon, the animal was closer to the Point Herron channel marker at the tip of the Manette Peninsula, Jenks said. She expects it to stay a week or more, based on previous patterns.

John Calambokidis of Cascadia Research in Olympia said it is difficult to explain why a whale would return to Bremerton again and again, especially in winter.

Most sightings of gray whales in Puget Sound occur during the northern migration between March and May, when they are returning to their feeding areas off Alaska. Because of limited food supplies in Baja California, the whales are probably coming into Puget Sound for something to eat before continuing their journey north.

The winter months mark the southern migration, when the whales are returning to calving areas in Mexico. Whales come into Puget Sound from mid to late December until early January and stay only a short time.

“We are a little ahead of that right now for sightings in Puget Sound,” Calambokidis added. “I cannot explain why a whale would return year after year on the southbound migration.”

For those who wish to see the whale, Jenks advises that people find an open area where they can watch the waters in the vicinity of the Turner Joy. The whale stays down between five and six minutes at a time, then comes up with a blow that releases a cloud of mist.

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Two conflicting state Court of Appeals decisions have each talked about the uncertainty brought about by the high court’s failure to muster a majority to spell out what happens when a county has updated its shoreline buffers and other regulations through a Critical Areas Ordinance.

The court seems to have determined that local shoreline regulations should be approved through the Shorelines Management Act, not the Growth Management Act. The real question now is whether approved Critical Areas Ordinances can be used until the shoreline updates are complete.

A letter from the Washington State Attorney General’s Office lends support to the idea that some counties may keep using their Critical Areas Ordinance for shorelines, at least temporarily. See my story in Saturday’s Kitsap Sun.

I wrote about this issue when state Rep. Jan Angel, R-Port Orchard and Rep. Joel Kretz, R-Wauconda, wrote letters questioning the “guidance” given to counties by the Washington state departments of Ecology and Commerce. See Kitsap Sun story from Nov. 2.

So far, the Supreme Court has not announced whether it will accept an appeal of the Kitsap County case for review. But it’s hard to imagine, given all the different opinions flying around, that the court wouldn’t want to direct the traffic.

You may wish to read the letters:

Letter from Attorney General Rob McKenna (PDF 3.1 mb)

Joint Letter from Ecology Director Ted Sturdevant and Commerce Director Rogers Weed (PDF 118 kb)

Original letter from Angel and Kretz (PDF 172 mb)

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The latest development involves a letter from state Rep. Jan Angel asking the state departments of Ecology and Commerce to quit giving legal guidance to local agencies. See my story in today’s Kitsap Sun.

It seems clear from court decisions and legislative actions that the Shoreline Management Act will provide long-term regulations for properties within 200 feet of the shoreline. This law — unlike the Growth Management Act that spawned critical areas ordinances — requires local shoreline plans to be approved by the Washington Department of Ecology.

But the immediate conflict involves what regulations should apply until local shoreline master programs are updated, a process under way for most Puget Sound cities and counties.

The practical aspects are that critical areas ordinances, updated within the past few years, generally include more restrictive regulations, such as larger buffers, in comparison to shoreline plans, most of which were drafted in the 1970s with updates that vary by jurisdiction.

Legally, the issues become complicated. Angel’s position appears to be that court rulings direct local governments to fall back to rules listed in the shoreline master programs until new shoreline plans are approved. Read her letter to Interim Ecology Director Polly Zehm (PDF 172 kb).

Ecology’s position seems to be that local governments should not throw out rules developed in their critical areas ordinances until the shoreline plans are updated.

I should point out that Brian Hodges, an attorney with Pacific Legal Foundation, maintains that Kitsap County would be putting itself at legal risk if county officials continue to process shoreline applications under the Kitsap County Critical Areas Ordinance. Hodges was the prevailing attorney in a lawsuit brought by Kitsap Alliance of Property Owners. County officials say they will appeal the ruling to the Washington State Supreme Court.

As for Ecology’s updated “guidance,” the reasoning goes as follows. See Ecology’s Web site for the complete analysis.

“On June 10, 2009 the Washington State Supreme Court issued its final ruling in Futurewise et al v. Western Washington Growth Management Hearings Board et al., 164 Wash.2d 242, 189 P.3d 161. This case addressed protection of critical areas that are within the jurisdiction of the Shoreline Management Act. Specifically, the Supreme Court was asked to interpret Engrossed Substitute House Bill (ESHB) 1933, which passed the legislature in 2003. The case is commonly referred to as the “Anacortes case” because that city’s critical areas ordinance (CAO) is the topic of the decision….

“In the Anacortes case, the Supreme Court issued a 4-1-4 decision. The Court issued two opinions — a “lead” opinion and a dissenting opinion, each supported by four justices. The ninth (and deciding) justice concurred with the lead opinion with the stipulation that her signature supported “result only.” This deciding vote was unaccompanied by an opinion.

“Due to the nature of this split decision it was not clear whether the Board decision applies beyond the City of Anacortes. It takes a majority of justices (in this case, five votes) for a Court opinion to establish a legal precedent that is binding on subsequent cases. Here, there is no majority Court opinion beyond reinstatement of the 2005 Board decision, and neither of the Court opinions endorsed the Board’s reasoning in the Anacortes decision. In addition, other recent Supreme Court decisions have stated that Growth Boards decisions resolve disputes related to specific local government actions under the Growth Management Act, but do not establish policy.

“In September 2009, the Court of Appeals Division II issued a decision in Kitsap Alliance of Property Owners et al v. Central Puget Sound Growth Management Hearings Board et al No. 38017-0-II. This decision involved Kitsap County’s update of Critical Area provisions in the Shoreline area. The decision relies on the June 2009 Supreme Court decision discussed above. Specifically, Division Two concluded that, when the Supreme Court cannot garner a majority view for resolving an issue, the position of the court is the position of a majority of justices concurring on the narrowest possible grounds. Here, reinstatement of the Anacortes Growth Board decision was the narrowest possible grounds for five justices’ concurrence. Thus, Division Two applied the Growth Board decision to the Kitsap County CAO.

“As a result, the court remanded the matter to Kitsap County to do its planning for shoreline critical areas under the SMA rather than the GMA. The court did not address the issue of whether the County’s prior CAO continues to apply until the SMA planning effort is complete. However, the Growth Board decision in the Anacortes case held that prior CAOs remain in effect until the SMA planning is complete. Since Division Two found that reinstatement of the Growth Board decision was the “decision” of the Supreme Court, it is our position that prior CAOs do remain in effect until a local jurisdiction completes its planning under the SMA….

“First, it is our position that neither decision affects critical areas ordinances that were adopted prior to the effective date of ESHB 1933 (2003). Those ordinances remain in effect.

“Second, it is our position that CAOs that were adopted after the effective date of ESHB 1933 and are not currently subject to a challenge are valid and remain in effect. This is based on the GMA’s requirement that CAOs are presumptively valid and must be challenged within 60 days of their enactment for a GMHB to determine that the CAO is invalid. If the CAO was not challenged within 60 days or if the appeals have been completed, then local governments are not required to revisit the critical areas protections contained in those ordinances.

“Third, it is our position that, moving forward, local governments that are currently updating their protections of shoreline critical areas should do so under the SMA rather than the GMA. This can be done either as part of a comprehensive SMP update or as a stand-alone amendment that complies with the guidance that Ecology has issued for stand alone amendments. However, cities and counties should be careful that the adopting ordinance for any CAO updates clearly ensures the existing CAO remains in place for critical areas within Shorelines until superseded by an Ecology-approved SMP update.

“Fourth, local governments have the authority and the obligation under the SMA and their existing SMPs to review and condition project proposals in the shoreline area to achieve consistency with the SMA’s policy objectives, including protection of shoreline resources. The legislature directed in ESHB 1933 that local shoreline master programs provide protection of critical areas in shorelines at least equal to the protection provided by their CAO (RCW 36.70A.480(4))….”

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