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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Don Flora, a retired forest researcher, conducted a statistical analysis of data compiled in separate shoreline assessments of East Kitsap and Bainbridge Island. Flora concluded that the reports show no apparent relationship between man-made stressors and ecosystem functions. Please take a look at my story in today’s Kitsap Sun.

Not finding a correlation between these two factors does not mean that man-made structures are harmless or without effect on the ecosystem. But these findings do raise questions, as Flora points out. Download his report here (PDF 188 kb).

So far, I have been unable to find a qualified scientist who has read Flora’s report and wishes to respond on the record. I’ve heard from a few who have questions about the analysis and may prepare a response in the future.

Among the complaints about Flora’s report are these: It does not follow standard protocol for a scientific report; it is not obvious how he conducted his analysis; and it was not peer reviewed by third-party experts.

Flora told me that his intent was to create a paper that could be read by average people, and he did ask a couple of people to edit it for readability. He did not intend for it to be considered a scientific paper nor for it to be peer-reviewed in the scientific sense.

I have heard complaints that Flora did not show his work, and I found myself asking him to point me to the data tables that he used to plug numbers into the standard regression analysis — a statistical tool used to show relationships between two independent variables. I suggested to Flora that he include an appendix that would show the raw data and help people replicate his work. He thought this might be a good idea.

If you want to take a closer look, review the findings related to Bainbridge Island shoreline planning and Kitsap County shoreline planning, including the county shoreline assessments.

Some scientists find it offensive that Flora lifted data from these two reports and manipulated them to his own ends without consulting the scientists involved. Others are suspicious that Flora used these data to reach his own conclusions — a suspicion heightened because Flora is a member of KAPO. And KAPO’s press release (PDF 64 kb) about Flora’s report makes a leap that stirs the pot of controversy:

“These reviews bring into question the justification for any nearshore restorations or the need to impose any shoreline buffer zones in the upcoming Shoreline Master Program updates.”

Dealing with numerous scientific studies will be an important part of the effort to update the county’s shorelines plan. Kitsap County planners say they aren’t sure how they will deal with Flora’s report, but they intend to lean heavily on expertise from the Washington Department of Ecology to point them to reliable scientific studies.

The planners say they want to make sure that any studies upon which they rely for planning are vetted before they move into policy discussions. During the update of the county’s Critical Areas Ordinance, such studies were never fully vetted — at least not to the satisfaction of property rights advocates. KAPO members ended up arguing about science all the way to the Washington State Supreme Court — though the court did not address science issues at all when it overturned the county’s shoreline buffers. See the Sept. 9 Kitsap Sun and the Water Ways entry the next day.

I’ve always expected that experts would engage in a healthy discussion about what it will take to protect the ecological functions of the county’s shorelines. Now it appears the discussion may take on the tone of a debate. In comments posted at the bottom of today’s story, some people are showing their distrust of government while others are showing their distrust of KAPO.

I hope everyone can somehow relax enough to embark on a real search for truth knowledge as it relates to shoreline ecosystems. After all, isn’t that what science is really about?

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Lake Tahuyeh property owned by the Washington Department of Fish and Wildlife

The groups feel betrayed because an official with the Washington Department of Fish and Wildlife withdrew the application for a permit after saying that nothing would happen until November, when a lawsuit was scheduled for trial. See my story in Thursday’s Kitsap Sun.

This story has had many twists and turns since 2004. Officials with the Tahuyeh Lake Community Club also have grievances against Fish and Wildlife officials, who they believed had agreed to abandon plans for a boat launch and sell the lakefront property.

Now, it appears a lawsuit filed by the community club may go to court. The issue: whether the state has the legal right to open the lake to the public, by way of owning a parcel of waterfront property.

Comments posted to my latest story generally support the community club’s position of keeping the public off the lake. This seems to be a turn, since supporters of the boat launch were well represented in previous stories.

I’ll keep the informal poll open a few more days to see if anyone wants to add their opinions on this issue. See the right column and vote if you have not already done so.

Here are some of the stories written about this issue:
Oct. 1, 2009: Fishing Groups Question ‘Secret Dealings’ on Lake Tahuyeh
Aug. 20, 2009: Lake Tahuyeh Boat Launch Project Stirs Politics, Passions
July 16, 2009: State Won’t Pursue Boat Launch at Lake Tahuyeh
Dec. 14, 2007: Hearing Examiner Says Lake Tahuyeh Boat Launch Needs a Plan
Oct. 11, 2007: Lake Residents Express Objections to Tahuyeh Boat Launch
Oct. 6, 2007: Tahuyeh Boat Launch Goes Before Hearing Examiner
April 14, 2007: Changes Could Minimize Plan for Tahuyeh Access
April 5, 2007: Sportsmen, Homeowners Take Sides on Lake Access
Nov. 20, 2004: Residents: ‘The lake is ours’

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UPDATE, Sept. 25
Kitsap County commissioners have decided to ask the court to reconsider its ruling that would invalidate the county’s Critical Areas Ordinance when it comes to shorelines. See the story I wrote for today’s Kitsap Sun. I will have more details as they become available.
——-

While Kitsap County officials gear up to rewrite the county’s Shoreline Management Master Program, they have been handed a hot potato they cannot ignore.

As I describe in a story in today’s Kitsap Sun, the Washington State Court of Appeals has thrown out the county’s shoreline buffers written into law when the county commissioners updated the Critical Areas Ordinance.

Property-rights advocates feel vindicated, and rightfully so. They have spent their own money — more than $100,000 — to fight a county they feel should be standing up for their rights. (See Karl Duff’s column from Feb. 25.) Meanwhile, the county uses public money to fight them back. Victory is sweet for the winners, but it comes at a price.

I hate to say it, but that’s the way things go. When environmental advocates win, they also wonder why they have wasted money battling the government. And if you are a government official, you try not to lose to either side — which is not easy in a case like this, because both sides were suing them at the same time.

Supporters of property rights have many grievances, and they have a right to speak up. But this week’s court decision must be kept in perspective.

Did the county commissioners violate private property rights when they increased shoreline buffers? Did they rely on the wrong scientific studies? Did they mistakenly apply uniform buffers when they should have considered the ecological value of each shoreline segment?

Maybe, maybe not. But the court never got to those questions. Let me recount the history.

Four years ago, when the county was updating its Critical Areas Ordinance (see Title 19), the commissioners essentially decided to leave 35-foot shoreline buffers in place until they updated the Shoreline Management Master Program (see Title 22). At that time, they thought the update would be just a year or two away.

The Central Puget Sound Growth Management Hearings Board ruled that the commissioners could not follow that course of action, because such buffers would not adequately protect habitat for salmon, some of which are listed under the Endangered Species Act.

So the commissioners went back to the drawing board and approved new shoreline buffers of 50 feet for urban areas and 100 feet for rural and semi-rural areas. They said the buffers would get closer scrutiny and might even be reduced during the shorelines plan update.

Those buffers were challenged on multiple grounds by the Kitsap Alliance of Property Owners. KAPO’s arguments were rejected by the hearings board (which was not allowed to address constitutional issues) and by Superior Court Judge Craddock D. Verser, who ruled that the county had followed “a reasoned process to address the necessity of protecting the identified functions and values” of critical areas. See my story of July 2, 2008.

That was before the State Supreme Court handed down a decision that interpreted the intertwined Growth Management Act and Shorelines Management Act as saying shorelines rules can be changed only by amending the county’s shorelines plan. See my story from Aug. 1, 2008.

And that was the controlling factor in this week’s decision. The county commissioners — and KAPO — were right the first time when they tried to delay any significant action on shoreline buffers. The appeals court acknowledged the confusion created for cities and counties by the Legislature and the State Supreme Court. You can review the comments in my story today or read the Appeals Court opinion for yourself.

Why does it matter whether the buffers are approved under one law or another? Besides the legal process, it is important to understand that the laws are distinct in their philosophies and procedures.

The Growth Management Act is a newer law, balancing the goals of allowing development and protecting property rights against the goals of protecting the environment and preserving rural areas. The county approves its plans and ordinances — including the Critical Areas Ordinance — subject to review by one of the growth hearings boards appointed by the governor.

The Shorelines Management Act lays out permitted uses along with specific provisions for protecting the shoreline environment. Some say it is more protective of property rights. The county approves its shorelines plan, subject to a veto by the Washington Department of Ecology. In fact, Ecology has the right to deny any shorelines permit approved by the county.

After the Supreme Court ruled that only shorelines plans can set regulations for shorelines, I was told by one or more county officials that Kitsap County might still have some hope of prevailing. Unlike most counties, it turns out that Kitsap’s shorelines plan does not list buffers when it comes to development. Instead, the shorelines plan points people to the Critical Areas Ordinance to find the required buffers — so there really is no conflict between the two.

When it came to the court ruling, I guess that argument never got off the ground, given all the other facts in the case.

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Kitsap County’s shoreline planning effort will move into full swing during the second half of this month. That’s when county officials will hold a series of meetings to share information with representatives from more than 100 organizations.

The importance of this process is not being overlooked by county planners, who realize that the outcome must protect the environment and property rights at the same time.

A letter is scheduled to go out next week to various groups, including civic clubs, community and neighborhood groups, chambers of commerce, environmental organizations, property rights groups, land conservancies, news media, yacht clubs, environmental restoration and recreational organizations, economic associations, and environmental and science educators.

Also included are various cities, tribes, county agencies, water districts, port districts, school districts and colleges.

Those who attend any of the five meetings will learn about state requirements as well as county plans for updating the Kitsap County Shoreline Management Master Program. Those who wish to participate in detailed work on the plan may be asked to join an advisory group, which will provide opinions on various proposals for the next two to three years.

The county commissioners recently approved a 25-page contract with the Washington Department of Ecology. Download the contract from the Kitsap County commissioners agenda (PDF 72 kb). The $650,000 contract outlines in detail what the county will be required to do over the next three years.

The work is organized into five phases
Phase 1: Preliminary assessment of shoreline jurisdiction and public participation plan.
Phase 2: Shoreline inventory, analysis and characterization.
Phase 3: Draft of shoreline management plan and cumulative impacts analysis.
Phase 4: Restoration planning and revisiting Phase 3 as needed.
Phase 5: Adoption process.

The vision developed by the planners includes these goals:

• Comply with legislative mandates including requirements for no net loss of shoreline ecological functions and values.
• Protect private individual property rights consistent with the public interest.
• Create a shoreline stewardship program that fosters reasonable and appropriate shoreline uses while protecting valuable and fragile natural resources.
• Engage a wide variety of stakeholders, citizens and interests in developing goals and policies.
• Integrate and support County development plans, policies, and regulations.
• Ensure predictability, accountability, and efficiency during shoreline development review and decision making.
• Have a strong scientific basis.

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A group of five seal-eating transient killer whales has been hanging out in South Puget Sound since at least Monday.

One of the transient killer whales spyhops in Oakland Bay Friday morning.
Cell phone photo by Billy Vermeer

They appear to be finding plenty of seals to eat, according to observers. This reminds me of six transient killer whales that visited Hood Canal in 2005, when they stayed and stayed and stayed — a total of 18 weeks. Check out one of numerous stories I wrote that year.

Observers have reported to Orca Network that the whales were spotted at the south end of Vashon Island on Monday morning. On Tuesday, they were seen in Eld Inlet. And today they reached Budd Inlet near Olympia. They’ve also been swimming among South Sound islands.

Erin Falcone of Cascadia Research in Olympia went out in a boat with her colleague Greg Schorr. Here’s what Erin wrote to Orca Network:

“We got reports of these whales early this morning, so Greg Schorr and I just went out to get a better look. There are five individuals in the group, 3 adult female/subadult male sized and two juveniles, one fairly small. Haven’t downloaded the images yet so not sure on the IDs, but we will forward them to Ken and Brad shortly.

“We saw at least two kills — one confirmed harbor seal and one that we assume was a seal, but we were at a distance so did not see the victim. We left the whales in the middle of Budd Inlet, headed slowly south toward Olympia. A WDFW enforcement team is on the water keeping an eye on them, and they said they will be around as long as the whales remain in the area. And that’s the latest from the south sound!”

Ken would be Ken Balcomb of the Center for Whale Research. Brad would be Brad Hanson of the National Marine Fisheries Service.

Former Secretary of State Ralph Munro, who lives in that area, provided this report to Orca Network today:

“I assume that you are getting all the whale reports from South Sound. They were in Eld Inlet near Cooper Point about 11:45 am today, gobbling up the seals. Our bays down here are loaded with seals so the locals are cheering for the whales every step of the way.”

Only time will tell how long the whales will stick around. Anyone who encounters the whales in a boat should be aware of the Be Whale Wise guidelines and a federal proposal to double the legal distance to 200 yards for resident killer whales of Puget Sound.

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As I describe in a story in today’s Kitsap Sun, computer models suggest that removing three-quarters of the human-introduced nitrogen may be required to remove Hood Canal from the state’s list of impaired water bodies.

How to remove that much nitrogen remains one of the toughest problems to answer. The model’s predictive abilities contains a degree of uncertainty even at a large scale. It cannot tell us how much nitrogen is being released from a specific home or group of homes.

It’s safe to say that different houses release different amounts of nitrogen, depending on the occupants and the setup of the septic system. For some waterfront homes, the drainfield is located behind a bulkhead, and a pulse of nitrogen-laden sewage goes out with every high tide. Other homes have drainfields in upland areas away from Hood Canal, where vegetation may take up a portion of the nitrogen.

Will fixing waterfront homes be enough? What about septic systems farther from the water? Does anybody still believe that every new home in the Hood Canal region — from Hansville south — should be equipped with a nitrogen-removing system?

What about other sources of nitrogen? Will some or all residents be asked to quit using lawn fertilizers? Can we do something about people who refuse to clean up their pet waste? Are there innovative ways to get nitrogen or plankton out of the water before problems erupt?

A wide-ranging group of scientists and other experts yesterday just touched the surface of the possibilities, and my story only touched on their discussions. The next step will be a presentation before the Hood Canal Coordinating Council, followed by more detailed considerations among subcommittees of the technical review group.

Three years of studies have answered a lot of questions about Hood Canal’s dissolved oxygen levels, but there remains a great deal of uncertainty about which steps will yield the best results.

I’m anticipating debates about whether we have enough information to act. But people need to realize that getting precise answers about an idea may take more time and cost more money than just doing it.

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On one side are local fishing organizations and state Sen. Phil Rockefeller, D-Bainbridge Island, who were able to get the Legislature to approve $240,000 for the boat launch.

On the other side are lake residents and state Sen. Tim Sheldon, D-Potlatch, who say it is a private lake and the public should not be allowed to use the lake.

Legal issues about whether the public has a right to use the lake or whether private property owners can block public access may be resolved in court. Leaving aside those legal issues, let me list the pros and cons of public access from a moral and practical perspective. If I’m leaving something out, let me know. Then please express your opinion in the poll at right.

In favor of a public boat launch:

1. The original developer of Lake Tahuyeh wanted to allow public access for fishing and boating. That’s why he deeded property to the Washington Department of Fish and Wildlife before the lake was created.

2. The water that flows through the lake and the fish that swim in the lake belong to the state. Residents are allowed to keep people off their private property, but the public should be allowed to float across the water.

3. Property owners on many lakes have blocked off access to lakes where they once allowed the public to go. The state should develop more access points to serve a growing population.

4. The Legislature approved the money to build the boat launch, which should determine state policy on the subject.

Against a public boat launch:

1. Given the limited size of the Lake Tahuyeh access, the state’s money would be better spent on a larger facility at a larger lake.

2. The public will not take care of Lake Tahuyeh the way local residents do. They will not abide by rules established by the residents.

3. The lake cannot support a large number of people, and the seven parking spaces may not really limit the number of visitors to the lake.

4. The public has never paid for maintenance of the lake, including reconstruction of the dam that impounds the water. Residents have paid all the costs through the years.

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As we’ve discussed before, a $33 million settlement with the tribes is designed to allow commercial shellfish growers to manage their beaches without interference. The trouble is deciding which beaches are legitimately commercial. See my Water Ways entry from two weeks ago.

The settlement agreement, which includes the state and federal governments, spells out requirements for being considered commercial beds — including certificates issued by the Washington State Department of Health as well as the Washington Department of Fish and Wildlife. Where such documents exist, however, they are not always specific about the parcels of property to which they apply.

Based strictly on legal requirements, tribal lawyers rejected nearly half of the beaches that growers proposed as coming under the agreement. That decision upset many growers, but tribal lawyers will not make the final decision.

On Tuesday, Tribal leaders met with representatives of the growers to see what can be worked out.

“No one is interested in going to court or putting legitimate growers out of business,” said Billie Frank, chairman of the Northwest Indian Fisheries Commission. “We don’t want to hurt the court order. We are trying to work this out, outside of court.”

Bill Dewey of Taylor Shellfish represented the growers at the meeting.

“I think things went as well as can be expected,” he said. “We were looking at some kind of collaborative process that would minimize the attorneys’ involvement.”

It appears that shellfish beds in the Totten Inlet area may become the test case for how the discussions proceed. The Squaxin Island Tribe is the only one with its “usual and accustomed area” in the inlet. Tribal members seem to know the beaches fairly well, and they may have personal knowledge about which beaches are long-time commercial beds and which have not been managed for shellfish.

After working on Totten Inlet, discussions may move to other beaches in South Puget Sound or Hood Canal, where multiple tribes traditionally gathered shellfish.

“One of the thing we like about this,” Frank said, “is that it is a face-to-face meeting. Everything comes out in the open.”

Despite their differences, there is one thing that keeps the tribes and growers united: Without clean water, nobody will have any shellfish to harvest.

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The first goal is to complete a contract with the Washington Department of Ecology. The contract will spell out commitments by both the county and Ecology and provide key elements of a work schedule.

Other efforts in the works include a community involvement plan, which will specify not only how interested people can become involved but when special efforts should be made to inform the public about specific elements.

In my story in today’s Kitsap Sun, I touched on a relatively new report called the “East Kitsap County Nearshore Habitat Assessment and Restoration Prioritization Framework.”

The report analyzes how much of East Kitsap’s shoreline has been altered, and it lays out a framework for prioritizing restoration projects. Restoration is not required by state law, but the county must examine potential restoration strategies in updating the shorelines plan.

If you have not seen the East Kitsap nearshore assessment, it probably would be worth your time to take a look. A similar report is in the works for the Hood Canal side of Kitsap County.

Although I tend to forget it, the shorelines plan also covers lakes and streams.

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