1. Protection of Upland Critical Areas in San Juan County – Key Questions Tim Blanchard Orcas Island Home Owner 1

2. Ask the Tough Questions Even if we may not know all of the answers, understanding the key questions is essential to effective public participation regarding these important policy decisions. Asking questions should be the first step in protecting our environment, our people, our economy, our community, and our way of life in the beautiful San Juan Islands. 2

3. What is a Critical Areas Ordinance? Growth Management Act (GMA) requirement Counties must adopt development regulations “that protect critical areas” Separate from the Shoreline Management Act (SMA) and Shoreline Master Program (SMP) provisions "critical areas within the jurisdiction of the [SMA] shall be governed by the [SMA] and that critical areas outside the jurisdiction of the [SMA] act shall be governed by the [GMA].“ See RCW 36.70A.480 and 90.58.030 (Finding, Intent) 3

4. Shoreline Regulation (looking ahead) Shoreline Management Act (RCW 90.58) Including CAs located within SMA jurisdiction DOE approval required and less local flexibility SMA rules require at least as much protection for shoreline CAs as the CAO But NOT vice versa Consistency does NOT require the same rules SJC does NOT have to impose DOE shoreline regulations/interpretations in the uplands

5. What are Critical Areas? GMA defines the types of critical areas (CAs) to be designated as including: Wetlands; Areas with a critical recharging effect on aquifers used for potable water; Fish and wildlife habitat conservation areas; Frequently flooded areas; and Geologically hazardous areas. SJC must designate these areas in the county. 5

6. Why is CAO Review Important? Required for GMA Compliance SJC must “review and, if needed, revise its policies . . . regarding critical areas . . .” RCW 36.70A.130(1)(B) Counties must “review and revise their plans and regulations, if needed, to ensure they comply with the requirements of the Growth Management Act.” WAC 365-195-900(1) SJC is among 1/3 of Washington counties yet to complete GMA-required CAO reviews 6

7. Why is CAO Review Important? Protecting our beautiful San Juan Islands Implications for home rule government Public participation Transparency Representation and fairness What affects our neighbors, our economy and our community affects all of us. 7

8. Who Will Be Affected? Everyone who lives, or wants to live, in SJC Maybe not all parcels, but: About 27% of parcels (approx. 60% of County by area) affected by wetlands and streams CAO Potential for continuous expansion of wildlife habitat conservation areas Not to mention aquifer recharge and as-yet-undesignated frequently-flooded, and geologically hazardous areas Consider effect on local economy, community, the people of SJC 8

9. What is Required? Under the GMA, SJC must have a “Critical Areas Ordinance”-- development regulations “that protect critical areas” SJC has already adopted “sensitive areas provisions” in the Uniform Development Code (UDC) SJC must review these provisions and update, if necessary, to protect CAs 9

10. What is Required? The County must first designate which areas are “critical areas” “People are asked to take the first steps, designation and classification of natural resource lands and critical areas, before the goals, objectives and implementing policies of the Comprehensive Plan are finalized.” WAC 635.190.040 This seems obvious: until the areas to be protected have been designated, how can County determine whether current rules are not adequately protecting them? 10

11. What is Required? Use of “Best Available Science (BAS)”: “In designating and protecting critical areas . . ., counties . . . shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas.” RCW 36.70A.172(1) Is a tool for identifying threats to CAs based on the actual conditions on the property to be regulated. Properly applied, BAS is a constraint on SJC’s discretion in developing new CAO restrictions under the GMA. BAS must be locally applicable. 11

12. What is Required? Giving “special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries” RCW 36.70A.172(1) Conservation or protection measures necessary to preserve or enhance anadromous fisheries include measures that protect habitat important for all life stages of anadromous fish, . . . Special consideration should be given to habitat protection measures based on the best available science relevant to stream flows, water quality and temperature, spawning substrates, instream structural diversity, migratory access, estuary and nearshore marine habitat quality, and the maintenance of salmon prey species. WAC 365-195-925 The SMP is a separate, but related issue. 12

13. What is Also Required? Development regulations must be consistent with SJC’s Comprehensive Plan and the 14 Goals of the GMA Note the GMA is “intended to . . . recognize the importance of . . . Washington’s economy, its people, and its environment while respecting regional differences.” RCW 36.70A.011 13

14. 14 Goals of the GMA Encourage urban growth Reduce sprawl Encourage efficient transportation systems Encourage affordable housing for all economic segments of the population . . . and encourage preservation of existing housing stock Encourage economic development, including retention and expansion of existing, and recruitment of new businesses Protect property rights Processing permits in atimely and fair manner to ensure predictability Maintain and enhance natural resource industries Retain open space and recreation opportunities Protect the environment “protect the environment and enhance the state's high quality of life” (emphasis added) Encourage citizen participation and coordination Ensure public facilities and services necessary to support development Encourage historic preservation SMA goals and policies for shorelines of the state 14

15. What is NOT Required? ” An overarching, broad brush “precautionary” approach WAC 635-195-920 recommends “a precautionary approach” when there is uncertainty about which development and land uses could lead to harm of critical areas or uncertainty about the risk to critical area function of permitting development Precautionary regulations must not violate Constitutional or statutory rights See Brian Hodges, “Have Washington Courts Lost Essential Nexus to the Precautionary Principle? Citizens’ Alliance for Property Rights v. Sims,” Working Paper Series No. 10-001 (January 7, 2010), available at www.ssrn.com. 15

16. What is NOT required? “No net loss” standard in the uplands “No net loss” standard applicable only to areas subject to shoreline master plans. WAC 173-26-186(8)(b)(ii); WAC 173-26-201(1). Even at shoreline, the requirement is not “no net loss of area” – the issue is loss of functions. WAC 173-26-201(2)(c) “As established in WAC 173-26-186(8), these guidelines are designed to assure, at minimum, no net loss of ecological functions necessary to sustain shoreline natural resources . . .” 16

17. What is NOT Required? Across-the-board, theoretical “best practices” SJC provisions must protect CAs, but the greatest possible protection is not required “Restoration,” “Rehabilitation,” “Improving” or “Maintenance” We may want to do some of these things, but the GMA requirement is “protecting” 17

18. What is NOT Required? Expiration or forfeiture of existing property rights based on nonconformity In devising CAO regulations related to upland areas, SJC is not constrained by the nonconforming use concepts that apply in shoreline areas pursuant to DOE shoreline rules and guidelines. Accordingly, SJC has the opportunity to be more reasonable and respectful of existing property rights than the Department of Ecology. 18

19. What is NOT Necessarily Required? Any revision of current substantive policy SJC may adopt a “resolution finding that, based on careful consideration of the facts and law, the jurisdiction’s comprehensive plan and development regulations comply with the GMA and the jurisdiction has met its update requirement.” CTED: Technical Bulletin 1.2 at 1-2 (September 6, 2002). GMA regulations explain that: “the review of existing designations should, in most cases, be limited [except] to the extent that new information is available or errors have been discovered.” WAC 365-195-410(2)(c). 19

20. What is NOT Necessarily Required? Specific Approaches to Regulation Buffers Critical Area Stewardship Plans (CASPs) “Best practices” Following current DOE recommendations The GMA gives counties broad deference in planning decisions, including CA designation and protection. The GMA is to be construed with flexibility to allow local governments to accommodate local needs. 20

21. What Regulation is Prohibited? Takings without just compensation Wash. Const. art. I, § 16; U.S. Const. arts. V, XVI Regulations are generally held invalid if they: Do not allow at least “reasonable use” Do not have a causal nexus with an identified public harm Impose a burden on a landowner that is not “roughly proportional” to the harm caused by the proposed development Regulations that restrict an owner's use of property can also become a denial of substantive due process 21

22. What Regulation Is Prohibited? RCW 82.02.020 provides generally that: “no county, . . . shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, . . . or on any other building . . ., or on the development, subdivision, classification, or reclassification of land.” Unless the charge is necessary “to mitigate a direct impact that has been identified as a consequence of a proposed development, subdivision, or plat.” Government burden to show essential nexus and rough proportionality 22

23. What is Still Unclear? Are there any critical areas in SJC that are not being protected by our current UDC (sensitive areas) provisions? Where are they? What changes, if any, are necessary to protect any particular identified wetland or species? What will be considered “best available science” applicable in SJC? 23

24. What is Still Unclear? Actual designation of critical areas. Where are the protected wetlands and wildlife habitat conservation areas to be designated by SJC? Defining “species of local concern” and designate species to be protected and the related habitat areas with specificity before attempting to design approaches to protection of that habitat. We need to know because we cannot effectively problem–solve in a vacuum. 24

25. Fundamental Policy Choices “Flexibility” Although flexibility may be essential in certain circumstances, providing flexibility entails additional administrative costs that Burden SJC administration going forward Burden owners seeking to use their land Flexibility can also lead to uncertainty in administration The “Island County” approach is not a panacea 25

26. Fundamental Policy Choices Non-Conforming Uses How restrictive? What do we mean by an “increase in nonconformity”? Expiration or forfeiture (e.g., on temporary discontinuation of use, or inability to rebuild after a fire within 2-years) Avoiding arbitrary or discriminatory future application What does ordinary maintenance mean? When does maintenance become a prohibited “alteration” or “modification”? 26

27. Fundamental Policy Choices “Reasonable Use” Exceptions As a technical legal matter, “reasonable use” means the minimum use that must be allowed to avoid illegality/unconstitutionality What should be our policy in SJC? Imposing the greatest permissible restriction on our neighbors, or Not impairing property rights any more than absolutely necessary to protect specific designated critical areas from identified threats. 27

28. Fundamental Policy Choices Pinpoint pollution prevention vs. indiscriminant tightening of development regulations for all Paternalism vs. individual stewardship Enforcement of existing rules vs. more restrictions on good and poor stewards alike Focused efforts to address identified problems vs. “carpet bombing” approach (certain to inflict significant collateral damage on economy and reasonable dreams of folks hoping to make their home in our community) 28

29. How Did We Get Here? We had the cart before the horse. We were leaping before looking to see whether we need to go anywhere at all. Prior SJC government started a process inconsistent with regulatory guidance and established principles of land use planning The result was a proposed ordinance drafted by citizens’ committee process without documenting the issues, if any, requiring new substantive rules SJC was poised to review the proposed CAO before the Planning Commission had an opportunity to review the Comprehensive Plan 29

30. How Is It Supposed to be Done? Under the GMA, starting point for planning and land use regulation is supposed to be identification of local issues/problems and then resolution of any that are found to exist through a “bottom-up” process. Any planning process that starts with the proposition that there is a problem requiring land use regulation, without proof, is fundamentally flawed. 30

31. CTED Instructions for GMA Updates GMA Updates, such as CAO, should be considered in deliberate process in four sequential steps: (1) establishing a public participation program; (2) reviewing relevant plans and regulations; (3) analysis of need for revisions;and only then (4) adoption of an appropriate resolution and/or amendments. CTED: Technical Bulletin 1.2 at 1-2 (September 6, 2002) (emphasis added). 31

32. Where Are We Now? On January 5, 2010, the SJC County Council agreed: Not to move forward with the current draft uplands CAO update at this time To review BAS for SJC, plan to adopt by resolution Concurrently consider “hot button” issues: reasonable use nonconforming use setbacks and buffers in urban growth areas (UGAs) 32

33. Where Are We Now? On January 15, 2010, Planning Commission reviewed “Land Use Element” of the Comprehensive Plan and recommended: Removing the "Precautionary Approach“ Removing "No Net Loss" provisions Focusing on "current and future functions and values“ as opposed to just geographic area Removing verbs like "enhance” and “restore” Changing a goal to “Allow use of property to the greatest extent possible while protecting the functions and values of critical areas.” 33

34. What May Happen Next? Ready to get started on the right path, but there is a lot of work to be done County Council Chair would like to complete the process during 2010 Should be just doable if we work cooperatively together like good neighbors County Council Hearings/Workshops Identifying local issues and problems (?) Identifying BAS for SJC Reviews and assessments by scientific advisors Deciding how to address any identified problems 34

35. What Can You Do? To protect your property rights and our future in San Juan County: Get involved, ask questions, speak out Contribute Your story Your time Your expertise Financial support Think of it as an investment in your property, our community and sound environmental protection regulations for the San Juan Islands 35

36. Observations from a Relative Newcomer We are blessed in San Juan County with many intelligent and deeply caring citizens, good neighbors, who share a profound respect and love of our environment and rural life. Islanders have a long history of working together through tough issues to protect our common and collective interests. We can do this. Let’s get busy and do it right. 36

37. Questions For additional information: SJC County Council http://www.sanjuanco.com/council/AboutTheCouncil.aspx SJC Department of Community Development and Planning http://www.sanjuanco.com/cdp/default.aspx Common Sense Alliance http://www.commonsensealliance.net/ CAPR – San Juan http://www.capr-sanjuan.org/ Tim Blanchard orcas.sji@gmail.com 37