Tardy Island County critical areas update prompts legal action

A state-required update to a section of Island County’s critical areas ordinances is seven years past due and a South Whidbey-based environmental watchdog group says that’s too long.

Officials with Whidbey Environmental Action Network, or WEAN, have confirmed that they will be filing a failure to act petition this week with the state’s Growth Management Hearings Board for the county’s lack of action to update its policies and regulations for fish and wildlife conservation areas.

Steve Erickson, litigation coordinator for WEAN, said the update has continually shown up on the Island County Planning Commission’s docket as an action item but has yet to be completed.

He believes the existing rules need “extensive changes” and, after years of delay, the only way to ensure the county takes action is to seek an enforcement order by the state hearing’s board.

“It’s the only way we can assure the county meets its obligations,” Erickson said.

“It’s just time that happens,” he said.

In 1990, the Legislature passed the Growth Management Act, which required counties and cities to adopt comprehensive land use plans and development regulations to coordinate and manage growth and development, as well as protect the state’s natural resources and critical areas.

In response, Island County adopted its comprehensive plan and its critical areas ordinance, which addresses wetlands and agriculture to geologically hazardous and frequently flooded areas, in 1998.

Those rules are subject to continual review, however, and the state established a Dec. 1, 2005, deadline for Island County. With the exception of fish and wildlife habitat conservation areas, all have been updated.

WEAN submitted a letter to Island County Planning and Community Development and the prosecutor’s office last month to notify officials of its intent to file the petition with the hearings board.

Along with addressing the conservation areas update failure, it alleged that the shoreline master program update, which is currently in the process of being adopted, contained elements of the old rules.

Erickson alleged a lack of consistency would be created between the two sets of regulations once the critical areas ordinance is fully updated.

Bob Pederson, the county’s planning chief, did address WEAN’s litigation threat at the commissioners’ work session last week, saying the petition and a possible enforcement order by the hearing board will be a hardship for the department.

“If they do so, that is going to have a substantial impact on the work program and there will be an economic number associated with that,” Pederson said.

Lacking the “in-house expertise” to accomplish all aspects of the update, he said an outside consultant would likely need to be hired.

Time was scheduled in 2012 to perform some of the work for the update but significant progress wasn’t made as attempts to secure grant funding failed. Pederson said he is optimistic they will have better luck with another grant opportunity being sought this January.

Some work was done, however, through the shoreline master program update as the rules contain a conservation areas element. Accordingly, Pederson does not agree with Erickson’s opinion that the program includes outdated policies.

“Certainly there are provisions from the old ordinance that carried forward but there is more than that,” he said.

Island County Commissioner Helen Price Johnson said she hopes the next grant application is more successful but she also made it clear that she believes it’s time to make progress on the overdue update.

“I think it is important that we move forward,” Price Johnson said. “It’s languished a long time.”

This isn’t the first time WEAN has been a thorn in the county’s side. Since its inception in 1989, the non-profit group has challenged the county on various land-use policies, projects and permits on more than 20 separate occasions.

Those challenges have taken place in courts, in front of hearings examiners and the GMA hearings board.

It’s been in continuous litigation with the county over the agricultural element of the critical areas ordinance since its adoption, with the latest court action scheduled for early next year.

The recent letter from WEAN also requested a schedule be mutually agreed upon for when the update would be completed. Erickson said this week he had not heard back from county officials and planned to file the petition on Thursday.

“We’re going to do what we need to do,” Erickson said. “It’s the only way we can assure the county meets its obligations.”


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