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A closer look: Island County's new wetlands rules

The hand wringing has begun over Island County’s new rules covering development near wetlands.

County officials unveiled the new rules last week as part of the overhaul of the county’s “critical areas” regulations that were last updated in 1998. “Critical areas” are environmentally sensitive areas such as wetlands, streams and steep slopes.

County officials have acknowledged that the new wetlands rules are complex and confusing.

“It is complex, and that’s a bit of a worry to me,” County Commissioner Mike Shelton said.

Beyond new rules, the package includes the adoption of different policies in the county’s comprehensive plan — its long-range guide for handling growth and development. Included at the same time, too, is the launching of a new land stewardship program, and the regulatory adoption of a “best available science” standard to support the new rules.

“It’s a huge bite to swallow. If there was some simple way to do it, we would pursue simplicity in a heartbeat,” Shelton said.

A major update

Island County was the first county in the state to adopt wetland regulations in 1984, but few changes have been made to the rules in the two decades since they were adopted.

In the existing rules, the no-go areas around wetlands called “buffers” were based solely on the type of the wetland being regulated.

Under the new regulations, Island County will categorize wetlands into four classes, and the county will work with property owners to determine the size of buffers, which will range from 20 feet to 300 feet based on a number of factors.

Rufus Rose, president of the Island County Property Rights Alliance, said there were multiple areas of the new rules that concern him.

“The hardest question I have is why is it prohibited to open up wet marshes and peat marshes to open water?” Rose asked. “Every wet area started out as open water, and to make it illegal to return some of this to wildlife habitat — why would it be wrong?”

Rose also cautioned that buffers of any size will pose impacts to property owners, especially farmers. As trees continue to grow in buffer areas, for example, they will cast bigger shadows and reduce the productivity of adjacent farmland.

Although the new rules include provisions for “buffer averaging” — which would reduce what Rose calls “no touch ’em” areas in certain spots — and ways to mitigate development impacts to wetlands through the use of wetlands banking on off-site lands, Rose said such efforts are limited.

“It’s kind of like saying, when you whip me, do I like it when you only whip me on the left side and not the right side,” he said.

“I think there is a religious zeal in protecting wetlands now that does not reflect balance,” Rose said. “I’m very concerned that we are overreacting and over-regulating.”

The old way

Beyond the obvious types of wetlands — ponds, bogs, streams and lagoons — scientists say wetlands can also include land that wouldn’t wet a frog’s bottom.

Wetlands can be land that’s soggy enough to support plants that live in saturated soils, or places where there is never any water on the surface, so long as the ground 1-foot-deep is saturated two weeks a year.

The county has broken down wetlands into three groups since 1984: Category A (tidal wetlands or wetlands where there are mostly native plants); Category B (where there are mostly non-native plants); and Category C (man-made wetlands such as pond farms).

Category A currently carries a 100-foot buffer; Category B,

50 feet; and Category C, 25 feet.

More than 80 percent of wetlands in Island County are now categorized as “A,” according to a recent report on wetlands.

The new regulations are focused on three factors: type of wetland, vegetation and land use, said Phil Bakke, director of the Island County planning department.

And under the new rules, wetlands will be labeled under four categories. Category A wetlands are bogs, coastal lagoon wetlands, delta estuary wetlands and wetlands with mature forests.

Category B wetlands are large, non-tidal ponded wetlands, wetlands associated with bogs, coastal lagoons or delta estuaries, and streams with “anadromous fish,” fish that are born in freshwater but migrate to the ocean before returning to reproduce.

Category C wetlands are other tidal wetlands, streams with resident salmon and native plant wetlands.

Category D wetlands are all other wetlands not already classified.

The county has 2,301 acres of wetlands in Category A. In Category B, 3,666 acres. In Category C and D, 3,682 acres.

According to the county wetlands report, all but 1,019 of the 9,649 acres of the wetlands in Island County are owned by the public.

The new rules

The draft regulations come as development consumes more and more rural land in Island County.

The number of clearing and grading permits in Island County has more than doubled since 2000, when 36 permits were issued. A total of 72 permits were issued in 2004, and 81 were issued in 2005.

Most of the clearing permits issued over the past five years have been for properties between 5 and 9.9 acres.

Bakke said the new rules will be difficult for some property owners to understand, largely because buffer sizes will be determined after a wetlands review is conducted by the county and the property owner.

The county will consider the type of wetland, the vegetation found there, and the use of the land before applying a set of rules to the property.

“There’s a reason for the complexity,” Bakke said.

“Our ordinance today is pretty simple. When we try to cater regulations to meet your specific conditions. You can’t help but get more complicated.”

Buffers that are set to maintain water quality, for example, range depending on the land use from 40 feet to 200 feet for Category A wetlands, 35 feet to 175 feet for Category B wetlands, 30 feet to 150 feet for Category C wetlands, and from 20 feet to 70 feet for Category D wetlands.

Overall, buffers will be even larger on some properties.

“There will be people who will have larger buffers,” Bakke said.

“We don’t think there is going to be a rash of 300-foot buffers,” he added.

Also, unlike the existing ordinance, there will be no size limits to wetlands that fall under regulation.

“That will cause a lot of concern,” Bakke said.

One potential problem, however, is that the smallest wetlands are hard to find and identify.

By the numbers

The county has 958 wetlands that cover 13,429 acres; roughly 2,079 acres are outside the county’s jurisdiction.

Last August, the county issued a comprehensive study that said wetlands were healthy on Whidbey and Camano islands. The study used maps, aerial photography, satellite images, information from 720 permit

files and site visits to 103 wetlands to gauge the health of wetlands on Whidbey and Camano islands.

The 244-page report, written by wetlands scientist Paul Adamus, also said the 1984 rules to protect critical areas looked like they were working.

Study offers details

The August 2006 report examined key indicators of wetland health, including plants, wildlife and wetland quality.

Historically, Island County has been drying out since settlers started coming in numbers in the mid-1800s. It’s estimated the islands had 22,574 acres of wetlands, about 17 percent of the county, which has since dropped to 13,428 acres of wetlands today.

The amount of original wetlands lost here, about 41 percent in Island County, is close to wetlands loss rate for the lower 48 states during the same time frame.

Most wetlands were lost, the study says, at the turn of the late 1890s/early 1900s as pioneers drained and diked wetlands.

Not only has the number of wetlands dropped, but the area covered has, too, and wetlands in Island County are becoming increasingly isolated; no longer connected to each other by streams, estuaries and other wetlands.

The Adamus study did not extensively address water quality, saying that such data was lacking and difficult to collect.

To overcome the data gap, the county has adopted a new water quality monitoring program to get information on water quality, the study says.

The county’s wetland study also notes other data deficiencies.

It says that trends in wetland species cannot be scientifically defended due to a lack of a historical, quantitative baseline. There is not enough local data to pinpoint trends on plant and animal species before and after the county adopted its first wetlands regulations in 1984. There’s also almost no historical data in Island County on water quality, sediment contamination and the spread of non-native plants.

Based on science

State rules require Island County to use the “best available science” as it overhauls its critical area rules. If the county doesn’t, it’s likely a state growth board would reject the rules.

With the public release of the new rules, the county has also issued its report on the “best available science” it used as the basis for its wetlands rules. Bakke said the county’s “best available science,” or BAS, will meet the mandatory milestone set by the state.

Adamus, who has been working as a consultant on wetlands issues for the county’s critical areas rules for more than two years, wrote the 77-page BAS report. It was released last week.

“This is the spine of the regulations. This provides the scientific basis for the ordinance,” Bakke said of the BAS report.

“We have leading experts in the world reviewing things specific to Island County.

“This is a remarkable effort,” Bakke said, adding that many jurisdictions have simply adopted the state Department of Ecology’s guidelines, which were based on a review of 100 wetlands across Washington state.

Island County’s “from scratch” effort, however, is based on local conditions.

“Ours is based on 100 wetlands in Island County,” Bakke said.

Island County’s wetlands are vastly different than those found in King County, for example; Whidbey and Camano wetlands aren’t influenced by floodplains and rain-soaked rivers.

Bakke said he expects the county to be challenged on what it says is its BAS.

“I think the county will be challenged, but the county will prevail,” he said.

The county has been regularly meeting with state agencies as the new rules were put together, and three peer review groups have examined the new rules. The groups included agency scientists, public and private sector scientists from across Puget Sound, and internationally recognized wetlands scientists from Maine, Oregon and Canada.

Shelton said the rules themselves were tailored to Island County and did not rely on the template established by the state.

“I believe our ordinance will be a better ordinance,” he said.

Shelton recalled the model ordinance suggested by the state Department of Ecology, and how property owners needed to hire biologists to examine their property, at $1,500 to $2,000 a pop, to complete an evaluation. Evaluations of the same property, he added, can have different results.

“The thing that we are finding with the counties that have adopted the ordinance is there appears to be little consistency,” Shelton said.

Other new changes include a new “rural stewardship plan,” an idea inspired by the backyard habitat program that’s been so popular on Camano Island.

The rural stewardship plan is a voluntary program for people who own rural parcels 1 acre or larger. It will give property owners the chance to get reduced regulations and property tax breaks if they make a long-term commitment to protect important habitat, using environmentally friendly fertilizers and pesticides, and keeping clearing to a minimum. Other options include designating conservation easements, reducing the size of lawns, building narrower driveways or using other low-impact development techniques, or installing drought-tolerant vegetation.

“The plan can serve two purposes; it can serve as a way to get points for the Public Benefit Rating System,” Bakke said, referring to the property tax reduction program. “Or, if you commit, you can be put into a less intensive classification for wetlands.”

“We’re trying to change the culture from a heavy reliance on regulations to one that has an equal reliance on education,” he said.

Meetings planned

A series of public workshops on the new wetlands rules will be held this month and next.

The schedule is:

• Monday, May 21 (6 to 8 p.m.) at South Camano Grange Hall, 2221 S. Camano Dr., Camano Island;

• Wednesday, May 30 (6 to 8 p.m.) at the Race Road Fire Station, 1164 Race Road, south of Coupeville;

• Thursday, May 31 (7 to 9 p.m.) at the Taylor Road Fire Station, 3440 Taylor Road, North Whidbey;

• Saturday, June 2 (10 a.m. to noon) at Four Springs Lake Preserve, 585 Lewis Lane, Camano Island;

• Wednesday, June 6 (6 to 8 p.m.) at the Race Road Fire Station;

• Thursday, June 7 (6 to 8 p.m.) at Trinity Lutheran Church, 18341 Highway 525, Freeland.

The Property Rights Alliance is also initiating a public conversation on the new rules that Rose hopes will last for months. It starts with a public meeting the alliance is hosting from 2 to 4 p.m. Saturday, May 19 at Grigware Hall at Trinity Lutheran Church in Freeland.

The county planning commission will hold hearings on the rules this summer and fall.

Rose said the Property Rights Alliance will do its part to help Islanders understand the new regulations.

“It is so complex and time-consuming that the average citizen can’t participate,” Rose said.

“It’s incredibly complex.”

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