State, feds driving shoreline review
June 9, 2008 · Updated 3:31 PM
The city moratorium on some shoreline development is driven principally by the requirement that the city update its 1996 shoreline plan and make it conform to new state rules by September 2002.But five days after the Bainbridge city council imposed its moratorium, the state Shoreline Hearings Board struck down the new state rules, calling into question both the time frame and the requirements that the city must meet.The city attorneys are trying to digest the decision right now, to let us know where we stand, said Libby Hudson of the city planning department.The underlying dynamic is the National Marine Fisheries Service listing of the Puget Sound chinook salmon as a threatened species, which triggers certain consequences under the federal Endangered Species Act.One significant consequence is that once a species is listed under the ESA, citizens may sue other citizens to prevent the destruction of habitat, said Michael Pollock, Bainbridge City Council member and a professional biologist.One way to deal with this is just to let the third parties duke it out in court, he said. But that's not a good idea for the city, because it could possibly get sued for issuing permits that allow habitat destruction.In the wake of the chinook's NMFS listing, both the state and the city looked at ways to prevent a spate of third-party litigation.The plan was for the state Department of Ecology to adopt regulations tough enough that NMFS would certify them as preventing all but so-called incidental takings of the threatened species. Local jurisdictions, in turn, would adopt conforming regulations. Ecology published its new regulations in 2000, and gave the local jurisdictions until September 2002 to adopt conforming plans. The planning department came up with an ambitious schedule to meet that deadline. The keystone is a comprehensive assessment of both the physical and ecological status of island shorelines.We are trying to look at patterns of land-use activity on the shoreline, said Peter Namtvedt-Best, who is leading the assessment team now at work. We are actually walking the beaches where we can, or going by kayak.The team times its trips with the tides, so it hits beaches only at lower tides, and never crosses into privately owned property above the high-water mark.We are looking at structures now - docks, boat-houses, bulkheads, outfalls and other structures, he said. The second phase of the study, which will extend into next year, is a biological assessment.The idea is to assess the health of near-shore ecology and functions, he said.The city will use that data to update its 1996 shoreline ordinance and regulations, which it will than submit to Ecology, which will ascertain whether the city plans correspond to Ecology's mandates.Ecology did develop tough new regulations. But on Aug. 27, the state Shoreline Hearings Board invalidated the Ecology regulations on several technical grounds, and told Ecology to rewrite them. Two of the five board members said that the problems went beyond technical. They attacked a central concept of the Ecology regulations, which is that simple protection of the shoreline environment is not enough, and that restoration of habitat is required.Restoration could require removal of bulkheads and docks, permitting erosion to occur and revegetating near-shore areas, according to Ecology's proposed guidelines.Because the hearings board decision could be appealed, and because the regulations would have to be revamped if there is no appeal, there is no way to predict when those regulations will be effective, or what they might contain.But even though the city doesn't have specific guidance, Pollock thinks the update should go ahead anyway.The Endangered Species Act is not going to go away, he said. And we have obligations to the ecosystem outside the ESA, such as treaty obligations to restore a harvestable salmon population.We can use the state regulations as guidance, and keep moving in the right direction, he said.But island contractor Andy Mueller, who has opposed the moratorium, says the whole process needs to be debated publicly in the beginning.The last (1996) shoreline program took over a year, and was all done in public, not by the staff working in the back room, he said. If we're going to make a major change in philosophy by going to restoration rather than protection, we need to open that to extensive public debate.