Environmental group celebrates closed ‘loophole’ in regulations

A local environmental group is declaring victory against a prolific logger over county forestry regulations.

Whidbey Environmental Action Network, known as WEAN, spent decades complaining that rules governing forestry permits are too vague and allow for loopholes that were taken advantage of by the Snohomish County logger J&D Builders Profit Sharing Plan and Trust.

The loggers recently dropped a legal appeal over amended language in county conversion regulations.

The portion of the code appealed indicated that, if a property is logged under a non-conversion permit, but is later developed, then the landowner must provide mitigation for the entire parcel.

The process becomes murky because forestry permits are issued by the state Department of Natural Resources, and a non-conversion permit indicates the land won’t be developed for six years after it has been logged.However, state law requires the county to have a procedure to review development of these cleared lots even before the six years is up, said Planning Director Hiller West.

When Island County updated its critical areas ordinance in 2017, WEAN challenged the document, saying that it didn’t protect wetlands and other critical areas to the best of the county’s ability under state law.

WEAN reached a settlement with the county that involved clarifying language in the code, and planning staff decided to update forestry code language to be consistent, said planner Meredith Penny.

“Island County was being a little too generous with its conditions,” said Marianne Edain, a spokeswoman for WEAN. “They were basically allowing conversion on demand.”

After the changes were made to forestry regulations, J&D challenged the code in an appeal to the state Growth Management Hearings Board.

The loggers argued the language was inconsistent with the goals of the Growth Management Act and interfered with “commercial timber production and the conservation of natural resource land,” according to the petition for review.

In the petition, J&D said it “is aggrieved and adversely affected by Island County’s” amendments.

WEAN intervened on the county’s behalf.

Edain said the loggers had been clearing properties under a forestry permit without declaring an intent to develop and then going back to the county to receive an after-the-fact permit. Some of these properties were on wetlands, which are regulated under special regulations in the critical areas ordinance.

In a review of one of the properties logged by the builders, a DNR biologist included in his report that a developer had “indicated he would prefer” the biologist not designate the area as a wetland “should he decide to convert the property at a later date.”

Edain said her group considers the withdrawn appeal a solid step in the right direction, but there are still a number of regulatory inconsistencies that can allow for damaged critical areas. Many of those problems are created at the state level, she said.

Bill Poss, county public works development coordinator, said timber harvesting by nature is complicated and “often landowners are unaware of the implications of a permit issued by the DNR.”

“It can be awkward to have two regulatory frameworks for timber removal with different regulations on protecting critical areas,” Poss said in an email.

He said the county requires a critical areas consultant to evaluate proposed sites for development and prepare a report and mitigation plan to lift a conversion moratorium.

Edain said her group will continue its efforts with the state agency to further protect wetlands from logging.

“The bottom line here is that we want to see critical areas in Island County protected, and it’s not just for the critical areas,” she said. “We are a part of this ecosystem, and we need to protect and maintain this ecosystem functionally so it can support us.”

Attorneys representing J&D did not respond to a request for comment.

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