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WEAN wins buffers decision in court

While volunteers like Cleveland Hall, Molly Peterson and Michael Seraphinoff will protect wetlands against invasive species like purple loosetrife — as they are here on a recent cutting day — new regulations will protect wetlands legally. - Nathan Whalen / staff photo
While volunteers like Cleveland Hall, Molly Peterson and Michael Seraphinoff will protect wetlands against invasive species like purple loosetrife — as they are here on a recent cutting day — new regulations will protect wetlands legally.
— image credit: Nathan Whalen / staff photo

It looks like bigger buffers to protect small streams and certain wetlands will be in mandatory in Island County.

That’s 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 county’s 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 I’m pretty happy with that,” said WEAN co-founder Stave Erickson.

Erickson said he was disappointed that the court didn’t rule in WEAN’s favor on all issues, but pointed out that the court’s decision mirrors the hearings board’s previous decision.

The appeals court found that Island County’s 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 county’s agricultural exemption concerning critical areas is too broad.

Island County Commissioner Mike Shelton said the rulings were a setback.

“Obviously, I’m 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 don’t bear fish and are dry part of the year.

While the county argued that the buffer ensures water quality, the court didn’t 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 isn’t 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 county’s 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 doesn’t 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 didn’t follow case law on the subject.

Like the county, Erickson said doesn’t know what his next step will be in the case.

Should the county or WEAN appeal the court’s ruling, the group would have to go to the state Supreme Court.

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