Critical win for farmers - Judge rules against stream-side buffers for some agriculture

by Jeff Chew
Peninsula Daily News


Port Angeles, WA- Agricultural uses that existed near streams and waterways in Clallam County before the state Growth Management Act was approved are exempt from the law, a judge ruled Tuesday.

Superior Court Judge George Wood sided with Clallam County in its challenge of the Growth Management Act Hearings Board, which had placed what are known as pre-existing agricultural uses under the purview of the law.

Without the ruling, longtime farmers and others would have had to move farther away from streams and other wetlands, giving up productive agricultural properties.

Wood's ruling exempts from the county critical areas ordinance agriculture uses that existed before the law's waterway buffer requirements were approved.

The judge also ruled for the county regarding the state Hearings Board's decision that prohibited "buffer averaging" variances along certain streams and waterways, said Bob Martin, county director of community development.

"The pre-existing agricultural exemption is appropriate with regard to the whole critical areas ordinance," Martin said, explaining the judge's decisions late Tuesday afternoon.

"You can't imagine what this would have done to existing agriculture."

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

Gerald Steel, a Seattle-based attorney and professional engineer who represents the groups, countered Martin's claim that provisions of the act are discriminatory to agricultural interests.

Eloise Kailin of Blyn, president of Protect Peninsula's Future, said Tuesday night that she had not seen the details of Wood's rulings.

Further action

Said Kailin: "We're just going to have to take a look at it and see if we will take any further action, if any at all."

The county had argued 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 farmers were forced to comply with 50-foot buffer provisions of the act, they would have to move farther away from the creeks and streams, Martin said.

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

Five issues considered

Court documents detailing Wood's decision on five growth management issues the county challenged were not immediately available Tuesday night.

The county filed a brief last year in Clallam County Superior Court challenging the two Western Washington Growth Management Hearings Board rulings.

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

The board in 2001 ordered the county to modify its ordinance governing development near streams, wetlands and slide areas, with issues dating to 1999.

The other, larger issue of contention, Martin said, 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.

Under provisions of the act, streams and waterways defined as critical areas must 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.


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