Beware of Generic Vegetation Buffers

by Dennis D. Reynolds, Land Use Attorney, Bainbridge Island

A major focus of the public agencies is establishing new buffers of 150 feet in width. This focus is designed to implement a strategy that buffers must be part of any critical area or shoreline management program and should be adopted wholesale as part of any SMP or CAO update.

Proponents urge that the science of buffers is well suited to “built environments”, is properly directed to existing conditions, and /or can prevent “future impacts”. This approach ignores current GMA rural zoning requirements, impermissibly assumes unrestricted future development and does not consider the efficacy of existing regulatory systems.

The large buffer strategy is at the heart of a “de facto” restoration program designed to return the land to some pristine prior undeveloped state or condition, even though there is no authority under the SMA or the GMA to restore or rehabilitate shoreline areas. 

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This is the inevitable result, because imposition of large buffers makes existing uses and developments nonconforming, such uses and structures are highly disfavored under the law, as set out below, and legally can be phased out of existence.

The better approach is to establish clear performance standards for a site-specific analysis of the impacts of proposed development, including the possible imposition of buffers on a case-by-case basis. For instance, the City of Seattle’s CAO simply establishes additional standards for development within established marine zones.

The designation of more “critical areas,” including fish and wildlife conservation areas and associated marine under the GMA and SMA has been pushed by the State of Washington Departments of Ecology (“DOE”) and the WDFW.

To an extent, the Department of Community, Trade and Economic Development (“CTED”) has endorsed the concept of larger buffers as well. (1)

However, CTED specifically cautions against uncritical acceptance of the compilations of published lists of “science” relating to buffers, and strongly suggests that local governments critically examine the applicability of the published materials to make sure recommendations are appropriate for local land use and conditions. In this regard, the CTED Guidelines state:

The standard buffer widths presume the existence of a relatively intact native vegetation community in the buffer zone adequate to protect the wetland functions and values at the time of the proposed activity. (2)

Some participants in SMP updates or CAO reviews will likely suggest a “precautionary approach,” asserting buffers are needed because the existing shoreline is “degraded” or the science “unclear.”

There is no record of extensive shoreline degradation in rural Western Washington, but it is true that the Central Board has alluded to the “immature science dilemma,” (3)  suggesting imposition of buffers in the face of doubt without regard to their efficacy.

How this approach is reconciled with the GMA and SMA planning goals, and the case law is not explained, and the Board does not have the last word here, which is reserved to the courts.

A precautionary principle is not one of the GMA and SMA planning goals. (4)

The GMA and the SMA instruct and authorize local government to consider and balance all GMA planning goals (including protection of property rights) in order to develop locally appropriate critical area regulations. (5)

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1. See, in general, Protection of Critical Areas and the Mythology of Buffers, by Alexander W. Mackie, “Growth Management In Washington,” CLE seminar, November 1516, 2004, Seattle.
2. (CTED, Critical Areas Assistance Handbook, Appendix A)
3. Hood Canal Environmental Counsel, et al. v. Kitsap County, CPSGMHB, 06-3-00122, at 41-42 (Final Decision and Order (August 28, 2006) (2006 WL 2644138)
4. RCW 36.70A.020, RCW 90.58.020.
5. RCW 36.70A320; RCW 36.70A.3201; Clallam County v. Western Washington Growth Management Hearings Board, 130 Wn. App. 127, 139 (2005) (The GMA requires that local government “must balance protecting the environment” against other GMA planning goals.); Wean, 122 Wn. App. at 173; Heal, 96 Wn. App. at 531-32.