Shorelines under scrutiny
June 25, 2008 · Updated 12:11 PM
"Photo: A construction worker moves debris from a collapsed bulkhead at Bells Beach near Langley. Island County has made permits to replace the storm-damaged wall more readily available than most bulkhead permits.Matt Johnson / staff photoWhat's covered by the Shoreline Management Act?More than 20,000 miles of shoreline in the state including 2,300 miles of lakes shores, 16,000 miles of stream and 2,400 miles of marine waterfront. A shoreline is considered to be land bordering all marine waters, lakes of 20 acres or more, wetlands and river deltas, streams with a mean annual flow of 20 cubic feet per second or greater, shorelands 200 feet landward of the water's edge and some or all of the 100-year floodplain.Island County has 221 miles of fresh and saltwater shoreline.New rules may halt or hamper projectsThe Island County Commissioners will have two options for complying with new shoreline development guidelines coming down from the state Department of Ecology this fall. But they see trouble waiting down both paths.This week the commissioners got an early look at a draft of new state rules governing shoreline setbacks, bulkheads, piers, buffers and new agricultural activities on or near the water. The new guidelines are more restrictive than when the Shoreline Management Act was first written back in the early 1970s and now reflect increased efforts to protect endangered salmon and their habitat.Under the act, counties and some cities must write Shoreline Master Programs outlining how local regulations will protect waterfront, plants and wildlife while guarding property from erosion and preserving public health.The proposed shoreline guidelines have not been well received by the development community or by property rights advocates who see them as further government limits on what they can do with their own land.But Department of Ecology officials say some of the new guidelines, such as those for bulkheads, are long overdue and put a stop to long-held practices that have proven to be bad management leading to sharp declines in salmon and other fish runs.Now and in the future, bulkheads are going to be treated more seriously because they are one of the great evils of shoreline development, said Alice Schisel, a shoreline planner and compliance officer with the department. Bulkheads interfere with natural wave action and can erode habitat for many marine creatures, including salmon. Under the regulations of the past, it's estimated that more than half of Puget Sound's shoreline has been reshaped by such man-made barriers.Under the new proposed rules, property owners will have to set new homes far enough back from the shoreline that a bulkhead is not needed. To replace an existing bulkhead homeowners may need to produce a professional geotechnical report showing that the bulkhead is necessary and that no other form of protection is possible.The guidelines have been in development for five years and have already undergone one round of public comment last year. A strong, negative public reaction to the severity of the proposed rules forced the department to take another look. The latest version is still being reviewed. The department has conducted new public meetings on the rules and is talking with local government officials about how to put them into local plans. This time around, Schisel said the department is not expecting to make any major changes to the rules and the agency director is expected to adopt them by early September.Island County Planning Director Phil Bakke said the general feeling among local officials is that the state is moving too fast for local governments to keep up. He said the new rules lack specifics about what the state really expects.It's tough to know where we stand, said Bakke. We're being asked to comment on a document where no guidebook exists.Bakke said Island County will likely request that the Department of Ecology slow down the adoption process.Two Paths - Same Result?One thing the county commissioners would like more time on is deciding which of two optional paths they wish to take in bringing their shoreline regulations into compliance with the new guidelines. The proposed rules give local governments a choice. One option, Path A, is to conform to state guidelines but take on more flexibility on how to deal with federal endangered species laws. The other approach, known as Path B, complies with both state and federal guidelines and is more restrictive. The advantage to Path A is that it allows for more local control over shoreline development. There is less local control with the Path B approach but it comes with some assurances that the federal government will not sue the county if endangered species are hurt or killed as a result of any development. But Island County Commissioner Mike Shelton said neither path looks particularly attractive.Maybe there are two paths but they don't give any great shake to local government, said Shelton. He said government is in a no-win situation, placed between potential lawsuits from federal agencies on one hand, and potential lawsuits from angry landowners on the other.It seems like this is tailor-made for lawsuits. I can see counties having their largest single expense being legal fees, Shelton said.An example of a difference between the two paths can be seen in setback regulations. Currently Island County requires a 75-foot setback on new shoreline construction with reduced setbacks permissible in some instances. That requirement would likely be acceptable to the state under Path A but not to the federal government under Path B. Federal guidelines require a 100-foot minimum setback. The commissioners also want to know who is going to pay for all the time it will take to rewrite local laws and enforce them. Bakke estimates that a lot of work will be required regardless of which path is chosen. Shelton said state officials need to send appropriate funding to local governments if they expect counties to comply with the new rules in a timely fashion.Commissioner Mac McDowell cautioned that local governments are not required to enforce federal laws. Schisel agreed on the enforcement point but said state and local governments can be held liable for permitting projects that violate federal law. Besides, she said, if local governments decide to do nothing, the federal government will come in under the Endangered Species Act and impose its own regulations.That is what the state, through these guidelines, is trying to avoid, she said.The commissioners have asked to meet with representatives of the National Marine Fisheries Service who, along with the U.S. Fish and Wildlife Service, administer the Endangered Species Act, before deciding which path, if any, to take. "