General Overview of Problems With Critical Area Ordinance / Facebook post, Whatcom Hawk, Wendy Harris


10 hrs  February 22, 2017  Wendy Harris

Will the council approve a Critical Area Ordinance (CAO) that does not comply with the GMA? It is looking more and more likely. I am sick to my stomach thinking that after just one “general issues” work session, council will be ready to vote on the updated Critical Area Ordinance. It really did not help that few people participated, but how could they when there was no real training provided on such a technical issue? Perhaps if the CAO was not improperly separated from the Comp. Plan update, it would have been easier to obtain public input.

The updated CAO is so badly flawed that it was apparent even to the PC, who refused to find that the CAO complied with the GMA. The staff since learned to refine their delivery to the council, who seem to have no problems with the expedited and unreasonable time frame they were given. Yet, there are so many issues that have not been covered yet or that are simply wrong and do not comply with the GMA. The public was not given an opportunity to comment after the work sessions due to time constraints, and we are only to be given one final public hearing. 3 minutes to comment on the whole megillah is unreasonable. Council needs tp provide a separate hearing for each article in the CAO, even if they are all held on the same evening.

Best Available Science (BAS) is the required basis for the update but it is missing from the record, along with a reasoned analysis and a full and complete list of updated science. Instead we are given only the studies that support staff’s proposal. Part of BAS is the ability to monitor and understand the impacts of new development on the functional value of critical areas and ecosystems. The county has no way of knowing if “no net loss” standards are being met. If they did, they would be able to direct us to the areas that need work in this update process. Instead, we are working from scratch and no new evaluation and monitoring system is being proposed. We all understand the need for baseline standards and monitoring. Why doesn’t the staff? This is a fatal flaw.

Other problems include the lack of performance standards and excessive administrative discretion, which are interrelated and significant problems. These two things contradict each other. Either you have strong performance standards or you have “flexibility.” Flexibility is just a nice word for more staff discretion and less accountability. Without performance standards that are clear, objective and applied uniformly, there is no way to evaluate how well the county is complying with GMA standards. The hearings board tends to frown upon that.

There is no meaningful regulation of agricultural activities. The Critical Aquifer Recharge Area regulations are based on outdated standards and fail to include one of two prongs that need to be reviewed as part of the legal standard, the missing prong implicating agriculture as a source of problems for ground water quality and quantity.

The CPAL or farm plan program reflects denial of the damage to surface and ground water from agriculture, illegal removal of Nooksack water, pesticide contamination, air quality impacts, odors, social justice issues regarding farm workers, and the creation of dangerous pathogens. It fails to address meaningful ways to prevent over-application of manure to permeable soils. It leaves regulation of important matters to state and federal law without ensuring that those laws are adequate or even in existence, as was the case with the Confined Animal Feeding Operation Permits, which expired in 2011 and are only now being renewed. The nitrate contamination affecting 30% of drinking wells in the North County was swept under the rug and never referenced. Nor was the staff’s participation in a new international task force recently formed to address problems in the Sumas aquifer.

Best Management Practices are used as a substitution for Best Available Science (allowed for natural resource land), but without the mandatory measuring, monitoring and timeline protocols we were never told about. Then there is the secrecy built into farm plans. People are unnecessarily prevented from reviewing how and where and when BMP’s are intended to protect critical areas to prevent disclosure of “proprietary business operations”… for BMPs listed by number from a book? And staff failed to advise the public or the PC that the law explicitly allows for farm plan secrecy to be waived. There is no other public health and safety regulation kept secret from the public. None. Then there are the administrative procedures that the staff failed to disclose, although they greatly restrict the county’s rights above and beyond what is reflected in the updated CAO. For example, no review of a farm is allowed for the first year, and thereafter farmers can do their own inspection by sending in certified forms. By following BMPs, farmers are held harmless in the event of ecosystem degradation. In other words, the public gets to pay. This is your ultimate “get out of jail free” card.

Staff failed to identify habitat corridors although this is requirement of a GMA statute. While staff was given $50,000 for critical area work that might be necessary, the money was sent back by staff without any notice to the citizen committees. Now a wildlife advisory committee is working, on a volunteer basis, to create a habitat corridor, which is not an appropriate use of a citizen committee, and which will take quite a long while to complete. In the meantime, development occurs without concerns for habitat fragmentation, which is the first and most immediately important objective in planning for wildlife. In the simplest analysis, habitat fragmentation causes extinction of a population or species when the remaining fragments are smaller than the minimum home range or territory of that species. Under this analysis, members of
the population or species are unable to obtain sufficient
resources to survive over time.

Staff failed to advise or apply updated legal standards for Habitat Conservation Areas, which now include the critical area and the ecosystem in which it is located. Instead, the staff addressed a site specific review that only considered development within a critical area, which was improperly narrow even under the old standards. So many activities are allowed inside a HCA that it renders the HCA useless for protecting species. Agricultural activities, including new fences, are allowed to continue unabated. Vegetation can be removed and roads built, streams realigned and culverts and bridges built. New homes can intrude into buffers. Clearing and grading is allowed. Utilities can be built ( you know, like the ones at Drayton Harbor) along with dams, docks and launching ramps. In other words, there is NO habitat protection. And not one inch of land has been set aside for the protection of wildlife and habitat.

There is no inventory and assessment of current local species, locations and numbers. There are no predetermined buffer widths for terrestrials species, only buffers connected to water. Species of local importance are given a buffer on a case by case basis without any restrictions or guidelines for the staff member to follow. A test for adding species of local importance far exceeds the legal test for being a species of local importance and it is unlikely the staff itself could meet the standards imposed under this test. In short, this is a very hostile provision intended to limit the protection of wildlife and habitat to allow greater growth.

The worst abuses are seen in Art. 2 on Administrative Provisions. Simply because it was named “administrative”, staff refused to accept BAS on matters such as general critical area exemptions, or the addition of three new kinds of mitigation, now brought into doubt not only by the county’s failure to satisfy the pre-requirements, but due to the implications of recent case law in the Foster case. I am furious about an exemption, based purely on the staff’s unrestricted discretion, for “low impact activities”, all of which actually have great impact… things like hunting and outdoor recreation and boating and whatever else they decide in the future. The hearings boards has already ruled it a compliance issue to provide staff with restricted administrative discretion because there is no way to determine if this will end up meeting GMA requirements. And a critical area review is not even required every time development occurs within a critical area. That is determined by the Planning Director on a case by case basis. The staff is left with almost unlimited power. The fact that they may not be operating on this basis is besides the point. This is not good law or policy and it does not ensure protection of our most important and sensitive lands into the future.

I am providing a very general overview of some larger issues, without citation, just to provide a sense of the problem. This CAO, in its current form, is useless. It is unlikely to protect critical areas and ecosystems from a net loss of functions, but of course, there is no real way of proving that, which is just how this administration wants it. This allows the county to continue on a path of unsustainable growth without being tied down by facts and figures and science and all that stuff that the state uses to restrict our property rights.

If you think environmental protection is a priority, please write the county and ask for additional work sessions and more than one public hearing on the entire CAO… preferably one public hearing for each CAO article.

Ready Wendy’s post in the Whatcom Hawk Facebook group here. 


Addresses to contact the Whatcom County Council:

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