Bye-bye buffers? Commissioners set to approve new fish-and-farms law
The county has required farmers to install buffers for years, but kept moving the deadline back, six months at a time. On Monday, the commissioners, who have always been against buffers, will abolish the requirement entirely.
Buffers were on the books only because the Swinomish Tribe and other salmon advocates won a string of legal victories. With rulings that the county wasn't protecting fish from farming, the county was forced to require buffers.
But the tide may be turning. A state board that so far has sided mainly with the Swinomish allowed the county to come up with a different solution -- as long as it does so by June 26. And a fresh court ruling from Port Angeles could lead to a complete reversal.
Buffers are strips of land covered in vegetation meant to provide shade for streams and filter pollution out.
In its newest response to farm buffers, county commissioners are considering an ordinance that would simply require farmers not to harm fish.
Farmers would be required to keep livestock from spending more time than necessary in streams when they go down to drink, to keep manure away from streams, and keep sediments from running into the water. The new proposal also includes a list of state laws that farmers already must comply with.
But the county won't require anything more -- not buffers, not a farm management plan -- unless it determines the farm's runoff is actually hurting fish.
That's a dramatic change from the previous plan, which required farmers outside the Skagit River delta to install buffers. Although the county promised to reimburse farmers for the installation costs, many farmers said so much land would be taken out of production that it could force them out of business.
The plan was so unpopular that the county was sued by farmers, who charged the buffers were too wide, and the Swinomish Tribe, who said the buffers weren't wide enough.
The tribe won in court, so the county asked a state hearings board if it could start over. The board said yes, but gave the county until June 26 to put something together.
The new plan, once approved, likely will be appealed by the tribe. And many farmers aren't happy about it either -- especially delta farmers, who were exempt from the buffer plan but are treated the same as their upriver compatriots under the new plan.
However, a court decision from Port Angeles could change things dramatically.
Fish-and-farm laws, known in government parlance as "critical areas ordinances," are rooted in the state's Growth Management Act. That law requires local governments to protect "critical areas" such as fish habitat.
In almost all cases, the state law only requires regulation of new buildings and new operations. New homes cannot be built right on a creek, while existing homes don't have to move.
The Western Washington Growth Management Hearings Board, though, ruled that agriculture couldn't just proceed as normal, and existing farms had to change their ways. That ruling, upheld by Thurston County Superior Court, is why Skagit County has had to come up with an ordinance to regulate farms.
But Clallam County Superior Court in Port Angeles disagreed with the hearings board. In a strongly worded decision, the judge said agriculture can't be singled out for special requirements.
The judge echoed an argument made by local farmers for years -- if Skagit County has to change its ways, why doesn't Seattle?
The Clallam County decision doesn't affect Skagit County -- yet. If the decision is appealed, the case will be heard by the second district Court of Appeals. If that court upholds Clallam County's court, it could turn the whole situation on its head.
Or it might not.
Clallam County is different than Skagit County, noted Tom Karsh, the county's leader on critical areas ordinance issues. For one thing, Clallam County has about 7,000 acres of agricultural land, compared to 89,000 acres in Skagit County. Clallam County's farmland isn't laced with streams like Skagit's is, and it doesn't have a major salmon-producing river like the Skagit.
In addition, the law at the heart of the Clallam County case is different than anything Skagit County has proposed. Farmers in Clallam County are required to have farm plans or make some other accommodation toward fish -- an arrangement that Skagit County farmers would fight tooth and nail.
James Geluso can be reached at 360-416-2146 or by e-mail: firstname.lastname@example.org.
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