Clallam challenges critical areas ruling - Stream buffers at issue in brief

By Laura Walker, Peninsula Daily News
A3

Sept. 24, 2002

Port Angeles, WA - Clallam County officials are challenging a state board decision placing pre-existing agricultural uses under the purview of the Growth Management Act and prohibiting "buffer averaging" variances along certain streams and waterways.

The county filed a brief Monday in Clallam County Superior Court challenging the two rulings by the state's Western Washington Growth Management Hearings Board. A hearing date for the brief has yet to be set.

The brief is the latest round in the county's efforts to craft a critical areas ordinance acceptable to the hearings board that complies with the provisions of the Growth Management Act of 1990.

Last October, the board ordered the county to modify its ordinance governing development near streams, wetlands and slide areas, but the issues addressed in Monday's brief date to 1999.

County: State board erred

The county is arguing that the growth board erred in mandating pre-existing agricultural uses be brought into compliance with the Growth Management Act, saying that the act itself encouraged maintenance and enhancement of "natural resource based industries" and the conservation of productive agricultural land.

If agriculture is forced to comply with 50-foot buffer provisions of the act, "Farmers would have to move farther away from creeks and streams" Community Development Director Bob Martin said.

Martin called the decision singling out agriculture "discriminatory," noting farms would also have to fence cattle out of certain areas.

The other issue of contention is language adopted by the county to use "buffer averaging" variances in limited development situations along Type 4 and Type 5 streams. Under the ordinance, streams are classified type 1 through type 5, with type 1 waters the highest use areas for fish, wildlife and humans. A type 5 stream is defined as less than 2 feet wide and 500 feet long.

Minimum buffers

Under provisions of the act, streams and waterways defined as "critical areas" are required to have a minimum 50-foot buffer to protect their integrity, maintenance, function and structural stability.

The county allows for a buffer averaging variance, for minor development, that reduces this buffer to 25 feet, Martin said.

The reduction is made up by creating a wider buffer somewhere else along the waterway, in essence creating a type of "zero sum" situation, Martin said.

The variance is only authorized after an applicant establishes extraordinary hardship and shows the variance will not be materially detrimental to the critical area.

Two environmental groups - Protect the Peninsula's Future and the Washington Environmental Council - intervened two years ago, opposing the county's exemption of agriculture and the buffer variances.