WEAN wins appeal of toad rules

It’s the second court victory this year for the Whidbey Environmental Action Network.

Whidbey’s toad warriors were victorious over Island County in their efforts to protect the declining population of amphibians from potential habitat loss.

In a recent published opinion, the state Court of Appeals sided with Whidbey Environmental Action Network, known as WEAN, in its challenge of the Growth Management Hearings Board’s decision to uphold the county’s toad protections.

It was the second time this year that the Court of Appeals has sided with WEAN in a challenge to the county’s critical areas ordinance. The court agreed with the group on other critical-areas rules regarding a natural areas preserve and prairies.

Steve Erickson of WEAN wrote that the two Court of Appeals decisions may have “major impacts on critical area protection in Washington.” Critical areas have special protections because they have unique and irreplaceable functions in an ecosystem.

Island County Commissioner Helen Price Johnson said the board hasn’t decided whether to appeal the decision to the state Supreme Court. The Growth Management Hearings Board and a superior court judge had upheld the ordinance.

Price Johnson said county officials were surprised by the appeals court decision. She said the commissioners try to find a balance in which the environment is protected without unduly burdening property owners, and they had thought the ordinance “hit that mark.”

“Apparently there’s a little bit of work left to do,” she said.

The western toad is listed as a “priority species” by the state Department of Fish and Wildlife, which means it should be considered a priority for conservation and requires protective measures for survival.

The court agreed with WEAN on two toad-related issues.

The court ruled that the Growth Management Hearings Board erred in upholding the county’s decision not to count western toad upland sites discovered after the ordinance is adopted as critical areas. The decision states that the board and county misapplied “best available science” and the precautionary approach prescribed by the Growth Management Act.

The court of appeals ruled that the county’s limiting of “any occurrence” to a certain date is contrary to the plain meaning of the words.

The court also ruled that the provision that gives the planning director unrestricted discretion to waive the required biological assessment for minor projects is contrary to law.

The appellate judges, however, rejected WEAN’s challenge to the county’s 1,000-foot radius rule for requiring a biological assessment.

The Court of Appeals decision issued in March is the latest chapter in a fight between the county and WEAN that began with a 2014 ordinance that updated its comprehensive plan and development regulations for Fish and Wildlife Habitat Conservation Areas.

The court found that the county’s updated buffer provision for protecting the Admiralty Inlet Natural Area Preserve does not comply with the Growth Management Act, nor do the standards for defining protected prairies.

The court, however, affirmed the county’s regulations on a couple of other points.

The decision states that WEAN failed to show that the county is required to designate non-prairie habitat, nor did it show the county’s rules for designating “habitat of local importance” was in violation of the law.

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