Review of shoreline case possible
September 3, 2008 · Updated 4:03 PM
By SEAN ROACH
Environmental groups insisted that the SMP was not robust enough and didn’t provide the same regulations outlines in the CAO.
The court ruled that a state legislation bill signed in 2003 (ESHB 1933) was meant to retroactively place the shoreline regulation under the SMA, meaning that all SMPs approved by the Department of Ecology currently regulate city shores. The city of Bainbridge Island is to update their SMP in 2011.
But there is a certain degree of uncertainty with how to proceed now that proposed CAO amendments are basically void unless the court overturns its decision.
The Suquamish Tribe is also uncertain.
“We are waiting to see how things go, then we will evaluate our case against the city,” said Leonard Forsman, Tribal Chairman of the Suquamish Tribe. “We have to protect habitat, that is our goal and we use what tools are out there.”
Forsman said the most aggressive tool for protecting shorelines is the CAO, and that is why the tribe tried to get Bainbridge to amend it’s CAO. It is uncertain if the tribe will file a complaint against the city’s SMP.
“We feel that SMP, adopted in 1996, has not been updated to the level that the CAO protects critical areas,” Forsman said. “(The CAO) includes shorelines in our opinion, we felt it is a more effective means to protect habitat.”
Libby Hudson, long range planning manager for the city, believes amendments to the CAO will eventually end up in the amended SMP, but that the process will have to be stretched out over a longer timeline.
“That would be the staff’s recommendation,” Hudson said. “They would recommend it (CAO amendments) be added to the Shoreline Master Plan, but that would again be decision of the council, but we as staff would not go any quicker since it is a muti-year process.”
However, the Department of Ecology, which oversees the approval of city and county SMPs, is one of the parties to the request for the court to review its decision. Part of their concern is that cities will flood the DOE offices with hastily produced SMPs to fill in regulatory gaps that were covered by the CAO.
“It is a little ironic that there is a lot of attention being paid to the Puget Sound Initiative and one of the strongest tools to implement it are Shoreline Master Programs,” said Eric Laschever, a Stoel Rives Attorney who provided counsel on the Supreme Court case. “If the updated shoreline plans are a good thing, it’s just a question of having the resources to deal with the approval process.”
For Dennis Reynolds, an attorney who deals with shoreline land issues, Bainbridge already has a robust SMP in place and the court case is clear blow to the city’s proposed CAO amendments.
“I think you have to regulate exclusively under the Shoreline Management Act, it is clear as a bell,” Reynolds said. “I would say Bainbridge already has one of the most extensive use regulations in the state regarding shorelines. It’s a very detailed regulatory system. People think you can do anything willy nilly on the shores on Bainbridge – you cannot.”
However, until the court gives it’s final decision, amendments to CAOs and SMPs and pending litigation regarding shorelines will likely be put on pause.
“It is not clear in this case how much an effect the decision will have,” Laschever said. “Until there is a clear signal whether it will be reconsidered people will probably keep their options open.”