Clallam County Shorelines Master Plan
Report by Harry Bell
Covering the Draft Shoreline Management Plan for the
Port Angeles Business Association
November 12, 2017
On November 14 the last of four regional public forums will be held at the John Wayne Marina. These were scheduled by the Clallam County Board of Commissioners about the Draft Shorelines Master Plan (DSMP) recently approved by the Clallam County Planning Commission and the Department of Community Development (DCD). For emphasis, I am starting with the conclusion of this article—it is way too late to effect any substantial changes in the DSMP.
In 1971, the state legislature passed the Shorelines Act (SA). Forest landowners realized the potential impact on timber harvest and were able to get favorable recognition in the legislation. I suspect that, if you were here then, many of you were unaware or not well organized enough to affect that legislation. Since its passage the Washington State Department of Ecology (WDOE) has adopted and periodically “improved” the rules (WAC’s) that implement that legislation. Each rule change was a lost opportunity better to balance shoreline use restrictions for the public good against the cost of those restrictions incurred by private landowners—yes, I know that the SMP applies to all non-federal and non-tribal lands but the majority of lands impacted are in private ownership.
The SA and WAC’s contain periodic update expectations for local plans. As far as I know there are no consequences to not following that schedule. The Clallam County Plan was far past the update schedule. The current update only started when the county DCD requested accepted a (WDOE) grant to update the plan—another lost opportunity for rational and pragmatic input. The DCD then retained ESA Consulting to write the plan and created the Citizens Advisory Committee (CAC) to “advise” ESA and DCD on the details of the plan. Note that the DCD and the CAC received a standard template plan that had been used in other areas and likely was either written or approved by the WDOE. The mission of ESA and the WDOE designated “smooth-talkers” was to gain broad acceptance of that plan template. That said, the CAC, ESA and county planners had very robust discussions and effected many positive changes in the final draft plan. I don’t believe that a citizens advisory committee was used elsewhere it Washington State and the DCD should be recognized for using it. I am sure the outcome is far better than it would have been without the CAC.
As I stated at the beginning it is way too late to effect any substantial changes in the proposed SMP. Because of the diversity of comments, the proposed public forums will have little effect unless the Board of County Commissioners is willing to reopen the planning process and possibly form another Citizens Advisory Committee. For anyone wanting to make comments, here are those submitted by the Port Angeles Business Association in February 2015. The PABA had several representatives on the CAC.
- Section 10.3.5 (4) provides an opportunity for an applicant to request reconsideration of any final action on a permit. This request is to be “considered” by the “decision maker” without a written response or reasons for a change or for no change. Section 10.2.6 (1) gives the “review authority” broad discretion to condition permits—including those for permitted uses. Section 8.3.3 provides that the “administrator” shall specify mitigation measures to attain “no net loss” of ecological functions. Quantifying potential losses of ecological functions and mitigation for those losses will necessarily be very subjective because of the lack of site specific data that demonstrate cause and effect relationships. This creates the opportunity for ecological extortion on the part of the decision maker/review authority.
Requested changes:
– Establish a more robust reconsideration process beyond the county staff but less than the county hearings examiner—preferably to a local elected official.
– Require that a written response to the applicant be provided with detailed written reasons for any denial.
– Establish periodic citizens’ oversight to insure that mitigation conditions are proportional to the likelihood and magnitude of reduced ecological functions.
- The “no net loss of ecological functions” concept is stated as one of the “Governing Principles” of the State Guidelines (in the Washington Administrative Code but not the RCW). WAC 173-26-201(2)(c) explicitly allow impacts to ecological functions “necessary to achieve other objectives of RCW 90.58.020,” for example, priority for single family uses and recreational moorage. The mitigation sequence can stop at the “minimize” step without mitigation for the impacts that could not be minimized. Under the State Environmental Policy Act (“SEPA”) a declaration of non-significance can be issued for non-material impacts.
The “no net loss” requirement in the draft plan requires mitigation beyond that in SEPA and in the WAC. This excessive mitigation is also required in Section 8.3.4 that states “Compensatory mitigation measures shall occur in the vicinity of the impact or at an alternative location within the same watershed or appropriate section of marine shoreline (e.g., reach or drift cell) that provides greater and more sustainable ecological benefits.”
Requested changes:
– Consider “no net loss of ecological functions” on an aggregate basis for the County shoreline as a whole and require such net loss to be material before an applicant is required to mitigate.
– Establish a clear recognition that minimizing impacts to ecological functions is all an applicant is required to do if there is no material net loss for the County shoreline as a whole.
– Ensure that the SMP requirements are not more onerous on the applicant than those currently existing under SEPA.
- RCW 90.58 makes a clear distinction between shorelines of statewide significance (annual flow 1,000 of cubic feet per second or more) and shorelines-of-the-state (annual flow of 20 up to 1,000 cubic feet per second). Different policies and protection measures exist for each. The draft SMP does not make that distinction, implying that either one is over protected or the other under protected.
Requested change:
– All of the setbacks and other protection measures for streams with flow rates between 1,000 and 20 cubic feet per second should be reduced.
- RCW 90.58.150 provides for legislated rights regarding timber harvest adjacent to shorelines of statewide significance. These are not exemptions or variances. As such, these rights should not be restricted, as they are in the “Natural” shorelines designation, and they should not require a substantial development permit or mitigation, under section 8.3.1, to attain “no net loss of shoreline ecological function”.
Requested change:
– Timber harvest as specified in the RCW should be a permitted use in all shorelines designations and should occur without mitigation or consideration for “no net loss”.
- There are substantial changes in the shorelines buffering requirements but there is no analysis of how often the existing plan buffers proved insufficient and what respects they proved insufficient.
Requested change:
– Document where and under what circumstances the existing shoreline buffers proved insufficient and what material harm was caused thereby. Adjust the new buffer proposals to address these specific circumstances. Leave the buffers unchanged where there is no documented specific reason for increasing them. If it is not broken, don’t try to fix it.
- The county provided 14 scientific documents to support the draft buffer requirements. Virtually all of these studies involved streams much smaller than the “shorelines of the state”, thereby creating a false apparent need for larger buffers. For example, small streams are much more sensitive to stream temperature than “shorelines of the state” and therefore need larger buffers. Using small stream science for the much larger “shorelines of the state” therefore overstates the buffers needed.
Requested change:
– For “shorelines of statewide significance” adjust the buffers using only research from similar waterways. If such studies don’t exist, keep the current buffers unchanged.
- In its summary of the 14 scientific documents referred to above, the county reports a wide range of buffer requirements for various potential threats. Even though the minimum buffer widths in these studies centered around 10 to 30 feet, the county elected to use “best professional judgment” to require much larger buffers. This is particularly true for shorelines of statewide significance.
Requested change:
– Unless specific scientific studies explain why a buffer at the upper end of a range might be required, and those reasons exist on Clallam County shorelines, use the minimum (lower end of the range) buffers from the studies. “Best professional judgment” is not science. The Administrative Procedure Act requires that Washington State ecological rules adopt the Least Burdensome Alternative that would achieve the goals and objectives aimed for. Buffers that are wider than the minimum that can be justified scientifically as necessary would violate the Least Burdensome Alternative requirement and be unlawful and invalid under RCW 34.05.328(1)(e).
- Proposed buffers were designed to address “Effects of climate change, including flooding, storm surges, and sea level rise, etc.” (ESA Memo 12/11/12). This should be stated up front in the SMP.
Requested change:
– Chapter 1 of the SMP should state clearly that the policies and protection measures were designed to address climate caused changes to flooding, storm surges and sea level rise.
- The Environmental Protection Agency has recently adopted “Connectivity of Streams and Wetlands—a Synthesis of Scientific Evidence.” Using this, the Washington Department of Ecology has drafted the Washington Wetlands Protection Plan (comment period ended 12/31/2014). These two documents greatly expand wetlands into areas that have little or no surface waters. Without site specific wetland delineation landowners have no way of making informed comments to this draft plan. Nor do they have any way of evaluating the impact of these two new documents.
Requested changes:
– There needs to be a comprehensive analysis of how these two documents will change the proposed shorelines jurisdictional area.
– In the interest of providing certainty to property owners as to what rights and restrictions attach to each specific land parcel, there needs to be a definitive map showing, for SMP purposes, the delineations of all wetlands with significance for the SMP. Property owners should not have to bear the burden of any uncertainty of where the wetlands are or might be deemed to be in the future if definitions change.
- Section 10.3.1 states: “Permit applicants/proponents have the burden of proving that the proposed development is consistent with the criteria set forth in RCW 90.58 and this Program.” How is this possible when Section 8.3 provides for a county staff person to quantify a suspected “net loss” of ecologic functions and to specify permit conditions that mitigate for that potential loss? Section 8.3 creates a very subjective moving target that puts an applicant in the untenable position of having to accept the opinion of a county staff person that the proposed development, with that staff person’s conditions, is consistent with RCW 90.58.
Requested changes:
– Establish more robust reconsideration process beyond the county staff but less than the county hearings examiner—preferably a local elected official.
– Establish periodic citizens’ oversight to ensure that mitigation conditions are proportional to the likelihood and magnitude of reduced ecological functions.
- WAC 173-26-186(5) requires the county or Department of Ecology to conduct a “Process for Evaluation of Proposed Regulatory or Administrative Actions to Avoid Unconstitutional Takings of Private Property”. Where is that evaluation? How are the subjective concerns and mitigation requirements that surround the “no net loss” concept considered? The standard in Section 8.3.1 of the SMP of “extraordinary hardship and denial of reasonable use of the property” is much too restrictive, as an unconstitutional taking without compensation can occur through a diminution in value of property far short of a complete “denial of reasonable use”.
Requested change:
– Prepare the property rights taking analysis required under state law.
- The buffer requirements for wildlife habitat and other ecological functions and for visual benefits appear to be a tax on individual landowners for a public benefit. This is particularly unfair because the broad shorelines designations do not represent the very site specific variations in shorelines characteristics. Additionally, there appears to be no way (including financial feasibility) for a landowner to reduce the buffer requirements based on site specific conditions.
Requested change:
– Compensate landowners for the public benefits that they are being required to produce. Allow for alternate protection measures that take into account local site conditions.
- Section 10.2.10 reads: “Required fees for all shoreline substantial development permits, shoreline conditional use permits, shoreline variances, statements of exemption, appeals, pre-application conferences and other required approvals shall be paid to the County at the time of application in accordance with the Clallam County Consolidated Fee Schedule in effect at that time.”
For permitted uses, especially single family homes, there is no evaluation of the total costs of obtaining a substantial development permit. A high total cost of getting a permit can essentially be a prohibition against building and arguably a substantial taking of property rights.
Requested changes:
– Show the entire cost for some typical shorelines conditions and shorelines uses.
– Cap the total cost of fees in connection with obtaining a substantial development permit for a permitted use such as building a single family home.
- Sections 6.3 and 6.5 imply that natural vegetation is preferred in buffers. While there is an exception for hazard tree removal it is not broad enough to remove trees that eventually will cause landslides because they have grown beyond the slope and soil capacity to hold them.
Requested change:
– Develop a procedure or guide lines to address tree removal when trees show signs of instability.
