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WEAN wins critical areas bout with Island County

A legal battle that has raged for 15 years between Island County and a environmental watchdog group over critical area rules had another page added to its history last week.

On April 2, a Thurston County Superior Court judge overturned a 2006 decision by the Growth Management Hearings Board that the county can use farm plans as a management tool to meet state environmental protection laws.

“It is clear to this court that the methodology adopted by Island County to protect critical areas from agricultural uses on lands in agricultural use prior to 1998 violates the Growth Management Act,” wrote Judge Chris Wickham, in his opinion letter.

The Whidbey Environmental Action Network, or WEAN, appealed the 2006 case to Thurston County. It was the latest in a long series of litigation concerning the county’s critical areas rules.

Steve Erickson, legal coordinator for the group, is chalking up Wickham’s ruling as a victory in the ongoing legal battle but not one that was too surprising.

“It was really pretty predictable,” Erickson said.

Dan Mitchell, civil deputy prosecuting attorney with Island County, said no decision was made yet but the county has the option of appealing to the division one Court of Appeals.

He noted that before WEAN’s appeal, the county’s rules were found to be sufficient by the hearings board, a three-member panel of judges who specialize in land use law and are appointed by the governor.

“The judge clearly disagreed with the panel of experts,” Mitchell said.

The hearings board decides on issues revolving around the Growth Management Act of 1990; landmark legislation that aims to limit urban sprawl by keeping rural areas rural and urban areas urban.

It established a series of requirements for municipalities, ranging from the creation of comprehensive plans to adoption of ordinances that protect five types of critical areas: wetlands, drinking water aquifer recharge, fish and wildlife habitat, frequently flooded and geologically hazardous areas.

The legal battle between the county and WEAN has roots that stretch back to 1998 when the group challenged the county’s new comprehensive plan and other regulations adopted by the county.

They have been duking it out in court ever since, with the latest bout focused on the adoption of new agricultural rules in 2006.

The ordinance sought to exempt farms that existed before 1998 from having to comply with more stringent sections of its agricultural rules, which were adopted to satisfy requirements of the management act.

Instead, grandfathered farmers would be allowed to develop a standard or custom “farm plan” based on best management practices of the National Resources Conservation Services.

The underlying foundation of WEAN’s argument is that the loose regulations allow livestock near wetlands or other water sources, and that it could result as a major source of pollution to Puget Sound.

Wickham ruled that best management practices were not the same as best available science, the standard required under the Growth Management Act, because they were not designed to “protect” the “function and values” of critical areas nor give “special consideration” to the presence of salmon.

Farm plans would not “provide a bench mark or base line to determine existing conditions until six or more years after implementation of the program” and allowing the landowner to select from a list of controls to modify or restrict agricultural practices provided “minimal oversight,” Wickham wrote.

“There is no assurance that critical areas will be ‘protected’ by this methodology,” he wrote.

In addition, the county “failed to adequately fund any oversight of the program” and the plans are exempt from public disclosure unless certain conditions are met, the judge wrote.

While Wickham’s decision was clear, the issue is not over as it was remanded back to the hearings board. The county can appeal the decision to a higher court or comply and rework its existing rules.

“The county is keeping all options on the table while it reviews the decision,” Mitchell said.


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