WEAN wins buffers decision in court
June 25, 2008 · Updated 4:52 PM
It looks like bigger buffers to protect small streams and certain wetlands will be in mandatory in Island County.
Thats what the state Court of Appeals said this week when it gave the Whidbey Environmental Action Network a marginal victory concerning a variety of issues concerning the countys comprehensive plan.
Five issues were at stake when WEAN went to the appeals court after the state Superior Court overturned a decision by the Growth Management Hearings Board.
Basically we won three of five issues and Im pretty happy with that, said WEAN co-founder Stave Erickson.
Erickson said he was disappointed that the court didnt rule in WEANs favor on all issues, but pointed out that the courts decision mirrors the hearings boards previous decision.
The appeals court found that Island Countys 25-foot buffer for small streams is inadequate, that the county has to use best available science to determine buffers for Category B wetlands and that the countys agricultural exemption concerning critical areas is too broad.
Island County Commissioner Mike Shelton said the rulings were a setback.
Obviously, Im disappointed that the appeals court overturned three of the issues, he said.
He said he only had a chance to glance at the decision, which was released Monday. He and his fellow commissioners need to talk to legal counsel before making their next move.
The county had originally allowed for a 25-foot buffer for streams less than 2 feet in width, that dont bear fish and are dry part of the year.
While the county argued that the buffer ensures water quality, the court didnt agree and pegged the new buffers at 50 feet.
Shelton said that such a buffer could be a hindrance to people because they now have to account for a body of water they may think isnt a stream.
Requiring the county to utilize best available science to determine buffers for Category B wetlands wetlands that are at least a half acre in size and dominated by non-native plants will also require the county to increase buffers to 50 feet.
The court of appeals also ruled that the countys buffer exemption for current and existing agriculture in critical areas is overbroad.
Shelton said that the county has taken steps to preserve agricultural work and he believed that the use of best-management practices allowed for the reduction of setbacks in critical areas.
The county did win on two issues in the case.
The court ruled that the county doesnt have to provide a variety of rural residential zonings and that the buffers provided for Type 3 and Type 4 streams are adequate.
The county requires a 50-foot buffer for streams at least 2 feet in width a and important to water quality downstream, a 75-foot buffer for steams that are at least five feet wide that bears game fish and a 100-foot for streams that bear salmon.
When the hearings board rendered its decision on these issues 1999, the county appealed the decision to Superior Court. In May 2002, a Whatcom County Superior judge ruled in favor of the county on all issues.
WEAN headed to the appeals court arguing the judge didnt follow case law on the subject.
Like the county, Erickson said doesnt know what his next step will be in the case.
Should the county or WEAN appeal the courts ruling, the group would have to go to the state Supreme Court.