This Wednesday (July 30, 2008), the Bainbridge Island City Council will hear the second reading of a proposed new Marine Critical Areas ordinance No. 2008-12. Does this ordinance have a fatal flaw? If it is enacted, will the City (all of us) be subject to yet another round of costly lawsuits? The draft ordinance says,
“WHEREAS, National Marine Fisheries Service (NMFS) has designated all of the nearshore in Puget Sound as critical habitat for the threatened Puget Sound Chinook salmon; and
WHEREAS, this designation makes all of the shorelines of Bainbridge Island a critical areas since NMFS has determined that the Puget Sound Chinook salmon has primary association with the nearshore environment of Puget Sound, and …”
It is true that the National Marine Fisheries Service (“NOAA Fisheries”) at one time designated all of Puget Sound waters as “critical habitat” under the Threatened and Endangered Species Act” (“the ESA”), but reversed its position after the courts ruled such designation was overly inclusive.
When invalidating the SMA Rules, the Shoreline Hearings Board held that state and local governments have no authority to implement the ESA. See AWB et al., vs. Ecology, SHB No. 00-037, Order Granting and Denying Appeal (Aug. 27, 2001). In reaching its decision, the shoreline hearings board ruled that the State Department of Ecology was barred from promulgating a proposed rule based on the federal ESA mandates absent express statutory authority to do so. Like the Shoreline Hearings Board, the Council should find that the federal designation does not compel a particular result in Tacoma. As the shoreline hearings board noted: The federal resource agencies are not authorized under the ESA to force Ecology or local governments, outside the context of a federal action, to adopt regulations in conformance with the ESA.
Now the NOAA Fisheries ESA designation applies only to new federal projects and not to Bainbridge Island or private residential development.
The lesson from the federal government’s approach as to designating ESA Critical Habitat is three-fold for the City: (1) agency habitat designations change over time; (2) a local municipality should make its own choices; and (3) when doing so, should not over designate critical areas.
The proposed ordinance would designate as “critical areas” under the GMA all marine near shore areas and a 200 foot upland buffer measured from the ordinary high water line. These areas will be considered Fish and Wildlife Habitat Conservation Areas (‘FWHCAs”). The first 100 feet of the upland buffer, called the Marine Riparian Habitat Zone (MRHZ”), is essentially a “no build” setback to “maintain existing vegetation” and can be increased 25% if the existing vegetation on a parcel is sparse. The second 100 feet, called the Marine Riparian Management Zone (“MRMZ”), can only be developed after preparation of an expensive report called a Vegetation Conservation Plan (“VCP”). Development is only allowed in the MRMZ if it is shown that adverse effects to existing vegetation are “minimized.”
We thank attorney Dennis Reynolds for his research in this matter.
