Kitsap Alliance Critique of the County's SMP

Shoreline Master Program

Kitsap AllianceComments and Concerns

Bob Benze2-15-12

Kitsap Alliance Goals

Ensure the Kitsap County SMP update is done in strict compliance with the law – Chapter 90.58 RCW and WAC 173-26

Ensure that where science is used to support decision-making, that the science is defensible.

Our purpose is to ensure that regulations restricting the use of private property

are justified.

Government and Private Property

Government has no other end, but the preservation of property. – John LockeLet the people have property, and they will have power. – Noah WebsterNo person… shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. (Amendment V)

Property rights.

Bundle of Rights: to possess, to control, to exclude others, to enjoy, and to dispose.

When government decides they own some of the Bundle of Rights, they have exercised a “taking” which reduces the value of the bundle held by the property owner.

Such takings should be limited and justified. The SMP is a case in point.

The SMA and Private Property

The Shoreline Management Act gives the state the power to control some aspects of shoreline private property, specifically to “foster all reasonable and appropriate uses” while “protecting against adverse effects to public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life…”

Protecting the nearshore

The SMA is not an environmental protection law per-se. Other laws to do that. By almost all measures, including water and sediment quality and habitat, the health of Puget Sound has been improving substantially in recent decades. The existing regulatory system appears to be doing a remarkably good job of protecting the nearshore waters.

The real SMP update question

The question then is whether the county’s update process is doing what the law intends it to do, or is it now placing pointless restrictions on private property that are not supported by science and which will not improve the environment

The following slides suggest it is the latter.

Some Big SMP Update Issues

It would impose large, native vegetation shoreline buffers without sound scientific justification.

Its proposed land use controls, could make existing structures legally non-conforming.

It identifies properties as candidates for restoration based on faulty science.

Some More Big SMP Issues

It dramatically increases the number of parcels under the most restrictive shoreline designations of “natural” and “conservancy” with inadequate justification

It uses an unscientific approach to assess and control the cumulative impacts of future development.

Are Big Buffers Justified?

Per the WAC SMP guidelines, shoreline buffers are not required, but may be used to separate incompatible uses from critical saltwater habitats.

In its CAO, the county originally supported 35 ft. buffers. Then 50 ft. buffers (urban) and 100 ft. (rural) when the hearings board rejected 35 ft. Decision not science based.

Are Big Buffers Justified?

In the SMP update, the county is basing much of its regulation on a study of only 14 out of 1000 Kitsap beaches. A review by Dr. Vincent Gallucci of the UW pointed out that even in this hand-picked sample, the county was unable to demonstrate that hypothetical “stressors” such as lawns or piers had any clear effect on nearshore environmental health.

For the Battelle assessment, google “bainbridge nearshore report”

For study areas on Bainbridge Island – no clear association was found between possible stressors such as docks and nearshore

environmental health.

The same result was found in Jefferson County.

google “diefenderfer multiscale”

Are Big Buffers Justified?

Rather than heeding their own data that suggested big buffers are not needed, the county, attempting to justify 85-ft. buffers, published a Technical Memorandum that averages buffer widths found in the literature. It assumes buffer functions that include microclimate, shade, sediment-filtration, pollution filtration, large woody debris, and wildlife habitat protection.

Are Big Buffers Justified? No!

In its 10-page buffer technical memorandum, the county not only fails to show its work, it misrepresents key studies. For example, it says Desbonnet, et. al., 1994 recommends a 148-ft buffer (“adequate”). But on page 31, Desbonnet also says: “…a multiple-use vegetated buffer of five meters (16 ft.) could be considered a reasonable minimum-buffer-width standard.”

Are Big Buffers Justified? No!

Listed buffer functions and the widths will not stand up to close scrutiny. A nationally recognized expert, Dr. Kenneth Brooks, commented on the memo: “There is no science reviewed – only a list of mostly not peer reviewed papers by government agencies.” He recommended minimum buffer widths of 15–25 ft. unless some environmental harm can be demonstrated. None has.

Is non-conformance a problem?

The concern is that structures and property uses not in conformance with the new SMP ordinance (e.g. homes in buffer zones) will have potential problems with expansion, rebuilding, value, and the ability to use and enjoy property as desired.

The county says they will include language that allows existing structures to be considered legally conforming.

So is non-conformance still a problem? Yes!

The county’s proposed wording would allow rebuilding in case of fire, but it would not provide grandfathering of the use of the property – so permits for remodeling or other property modifications would still trigger the new SMP controls, potentially requiring replanting lawns with native vegetation, establishing view corridors, and other unwanted property restrictions and controls.

Unjustified Shoreline Restoration Does it affect you?

Based on a (discredited) model that supposes shoreline residential development “stresses” the nearshore environment, the county’s Inventory and Characterization Report identifies the majority of the shoreline as needing restoration to its “natural” condition.Yet WAC guidelines clearly state the baseline for ensuring “no net loss of ecological function” is the date of SMP approval.

Department of Ecology’s Real Restoration Goal could be

Radical

Some people in the Department of Ecology and elsewhere view the SMP process as a tool to eventually restore the entire shoreline to its original condition.

For example, in an October 2007 presentation, Betty Rencor of Ecology stated that the long term goal is to “eliminate” non-conforming structures and uses (i.e. those that are in buffer zones).

Unsubstantiated Shoreline Re-Designation – does it affect

you?

The county is increasing the number of parcels designated Natural from 94 to 500.

And the number of parcels designated Conservancy from 1,238 to 3,789.

Even though there is virtually no change in their definitions or management policies.

1/3 of shoreline owners will find themselves subject to far more stringent property restrictions – for no apparent reason.

Unscientific use of Proxies in Cumulative Impacts Approach

Department of Ecology guidelines require that future development impacts on water quality, water quantity, and habitat function must be avoided or mitigated to ensure no “cumulative” net loss of ecological function.

But the county will not measure habitat function directly, but will instead use “proxies” such as the area that docks occupy as a proxy for eelgrass or other habitat loss.

Unscientific use of “proxies” in Cumulative Impacts Approach

This approach is simply wrong. No clear scientific rationale for this use of

proxies is presented. Indeed, the data from three major studies

shows no clear relationship between proposed environmental “stressors” such as docks or bulkheads and harmful impacts to the nearshore environment.

Unscientific use of “proxies” in Cumulative Impacts Approach

Consider that most small residential docks are actually built in nearshore areas where no eelgrass grows.

Homeowners asked to spend money to mitigate the harm of such docks might reasonably wonder what environmental harm they are mitigating.

Current regulations are clearly working.

A review of Bainbridge Island hydraulic permit applications from 1997 to 2010 showed a net gain of ecological functions using Ecology’s proxies (linear feet of bulkheads, square ft. of overwater structures, number of creosoted pilings, square ft. of native vegetation, etc.) - under existing practices. So why are more stringent mitigation controls required?

Communications problems.

Kitsap Alliance has given the county thoughtful and well-researched input on the Shoreline Master Program update, pointing out where they haven’t complied with the law and where their science is just plain wrong. These have largely been ignored. See kitsapalliance.org for the documents and the county’s response.

Scientific input ignored.

The law (WAC 173-26) requires that information, including that from private parties, be assembled into the most current, accurate, and complete scientific and technical information that is available.

But the county says input from Kitsap Alliance scientists is just their “opinion”, apparently given the same weight as uninformed emotional opinions on science.

Who’s looking out for the environment?

Department of Ecology, Department of Fish

and Wildlife, Department of Natural Resources, 40+ environmental organizations, tribes, the Puget Sound Partnership, and the Puget Sound Regional Council.

All encourage strict shoreline regulations to protect the “fragile” ecosystem.

None emphasize property rights.

Who’s looking out for the property owner and the

environment?

KitsapAlliance.org

Do the environmental agencies have a bias? You

bet!

It is difficult to get a man to understand something when his salary depends on his not understanding it. -- Upton Sinclair

The grant money from Ecology, EPA, the Puget Sound Partnership almost entirely flows to organizations whose existence depends on ever-increasing regulation of the environment

This bias is reflected in policy.

UN Agenda 21 and sustainable development policies are designed to emphasize government control over private property and to ultimately remove people from the rural environment and the shoreline.

The Growth Management Act and its Vision 2040 interpretation by the Puget Sound Regional Council implements these policies, as do Ecology’s SMP guidelines.

There is no clear rationale for more restrictive regulations.

As data from the Bainbridge HPA permits shows, existing controls already provide clear benefits to the shoreline environment.

Insistence on ever more restrictive regulations, without evidence they will actually help the environment, does not meet either the letter or the intent of the law.

The county is not authorized to increase SMP environmental controls unless it has new information or changed circumstances.

Impact on Property Owners

As a mandatory condition of permit approval: Dedicate from 50 to 200 feet of their waterfront property for public use as a conservation buffer. Record the servitude in a notice to title that is perpetual in duration and binding on all future owners

The County’s legal problem with its proposed buffer

dedications:

Must satisfy the nexus and proportionality tests of Nolan and Dolan, demonstrating that such dedication is sufficiently related to identified impacts of the development to justify appropriation of private property for public use without payment of just compensation.

The County’s science is flawed to the point that it is cannot meet these legal tests.

A shoreline homeowner’s view of DCD and the

updated SMP

What can you do?

Get informed. Get involved. Visit kitsapalliance.org Ask questions. Demand answers."Government is not reason, it is not

eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.” — George Washington

The End

Thank you!