Planners must consider the science of buffers in crafting SMP updates.

In discussions with waterfront property owners regarding the county’s Shoreline Master Program update, we find several issues of concern that have not been adequately addressed by the County in the SMP Task Force meetings or  in other public venues.

One of these is the imposition of large buffer zones on private residential property. The public has not been informed of the county’s position on this subject, making it difficult for them to participate in the process of deciding how these buffers will be addressed in the SMP update.

As this decision has the potential to render existing homes non-conforming, to prevent homeowners from being able to use or improve portions of their property, and to otherwise cause socio-economic harm to property owners, Kitsap County is requested to not only involve the public now in this decision-making process, but also to consider the following:

SMP buffer requirements:

RCW 36.70A.060(2) requires that each county and city shall adopt development regulations that protect critical areas.

The Legislature has provided that shorelines of the state are not considered “critical areas” except to the extent that they qualify as critical areas as defined in RCW 36.70A.030(5) which states” Critical areas include the following areas and ecosystems:

(a) Wetlands;
(b) areas with a critical recharging effect on aquifers used for potable water;
(c) fish and wildlife habitat conservation areas;
(d) frequently flooded areas; and
(e) geologically hazardous areas.

In the SMP update, the County is required to provide for management of Critical Areas (WAC 173-25-221(2)), using scientific and technical information as described in WAC 173-26- 201(2)(a).

Critical Areas buffers are addressed in WAC 173-26-201 (2)(c)(i)(D), which states: “Master programs shall contain requirements for buffer zones around wetlands.”; and in WAC 173-26- 201 (2)(c)(iii)(D), for critical saltwater habitats, which requires “Establishing adequate buffer zones around these areas to separate incompatible uses from the habitat areas.”

Thus, buffers are required around wetlands, and they may be utilized to protect kelp beds; eelgrass beds; spawning and holding areas for forage fish;subsistence, commercial and recreational shellfish beds; mudflats, intertidal habitats  with vascular plants, and areas with which priority species have a primary association – but they are not mandatory for critical saltwater habitats, and should be applied only if “the most current, accurate, and complete scientific or technical information available” shows the adjacent shoreline uses are incompatible with (i.e. harmful to) these identified critical saltwater habitats. (Note that, similarly, buffer zones are also not mandatory for critical freshwater habitats.)

The Ecology guidelines recognize that “vegetation conservation” provisions cannot be applied to existing development: WAC 173-26-221(5)(a) specifically states: “Like other master program provisions, vegetation conservation standards do not apply retroactively to existing uses and structures…”. Taken at face value, this means that non-clearing native vegetation buffers should not apply to the built environment, but only to those areas that are not yet built up.

Thus, while there is guidance as to where shoreline buffers are required or allowed, what is not so clear is what the design of these buffers needs to be to “protect existing ecological functions and ecosystem-wide processes.” (WAC 173-26-221(2)(b)(iv))

In an August 5, 2010 SMP Task Force meeting, a Department of Community Development representative indicated the county planned to integrate the Critical Areas provisions previously established under the Growth Management Act, into the Shoreline Master Program update.

This is problematic for a number of reasons – not the least of which is that any GMA developed buffers must be shown to be consistent with the Shoreline Management Act requirements. Given the scientific requirements and the historical record, this is a highly unrealistic approach.

CAO Shoreline Buffer History:

In the Critical Areas Ordinance, a buffer is defined as: “a non-clearing native vegetation area which is intended to protect the functions and values of critical areas.”

In its 2005 review of buffer requirements for its Critical Areas Ordinance, the County acknowledged that there was a “scarcity of scientific data examining the marine-riparian interactions” and admitted that its scientific record “[did] not identify specific [buffer] widths based on direct scientific evidence.” Therefore, the 2005 version of the CAO did not increase the width of marine shoreline buffers beyond the 35-foot shoreline setbacks that already existed.

Subsequently, the Hood Canal Environmental Council successfully convinced the growth board that the County was required to revise its 35-foot shoreline setbacks. But in doing so the growth board recognized that the County’s marine shoreline best available science approach presented what it called an “immature science dilemma” and directed the County to adopt critical area protection based on best available science.

The County, however, stated that it “was not prepared” to collect additional studies needed to assure that its marine shoreline buffers were keyed to actual conditions on its shorelines. The County expressly stated that detailed scientific examination of the existing functions and values of its marine shorelines would occur as part of its SMP update.

Because the CAO was only intended to regulate shorelines until the SMP was adopted, the County, instead, chose to rely on other studies to (1) speculate about the functions and values that could be present on marine shorelines, and (2) estimate a buffer width that would be large enough to protect all potential functions and values.

At a growth board compliance hearing, the County explained that it relied on Pierce County’s near-shore assessment (ranking various segments of its shorelines from highest to lowest value in terms of existing critical area functions) to speculate about the range of functions “that can exist” on Kitsap County’s shorelines, stating that “[W]ith the use of the Pierce County near-shore assessment, we evaluated the functions that can exist in those critical areas off the different parts of the shoreline”.

In this process, the County assumed that the marine shorelines in its rural/semi-rural areas contained the highest value critical areas, justifying a large buffer, because they were similar in description to the areas that Pierce County scored as having the highest value. The County also assumed its urban marine shorelines contained the lowest value critical areas, warranting smaller buffers, because they were similar in description to those areas that Pierce County scored the lowest. These assumptions formed the basis of the County’s decision to expand the widths of the buffers for its urban and rural/semi-rural shorelines.

Because the available marine shoreline science did not “suggest protective buffer widths,” the County relied on the Brennan and Culverwell study, An Assessment of Riparian Functions in Marine Ecosystems, which offered two recommendations for the regulation of marine shorelines in the face of insufficient and uncertain science; one science-based and the other policy-based:

The science-based solution recommended scientifically appropriate buffers based on consideration of site-specific factors and the actual functional characteristics and associated benefits of the regulated property.

The policy-based solution suggested that “[u]ntil we learn more about the full suite of marine riparian functions, we should rely on [freshwater buffer science] and address uncertainly by taking a precautionary approach, providing buffers that protect marine shorelines”. (“Use the Precautionary Principle: ‘Do No Further Harm’”).

The County rejected the science-based approach and, instead, followed the “precautionary approach,” imposing buffers based on inland stream science, citing Brennan and Culverwell. But in so doing, the County clearly admitted in the record that the buffer recommendations suggested by inland stream science cannot be applied directly to urban marine shorelines, stating that existing conditions on some of Kitsap County’s marine shorelines “do not provide or support the whole range of functions that can be provided by a healthy riparian system.” — further stating that the recommended buffers are “applicable only to those ‘healthy (i.e. intact and functional) riparian systems . . .’ [t]his is not the case with Kitsap County’s urban shorelines.” … “[B]uffer widths that encompass all possible buffer functions are not applicable.”

Nevertheless, they did it anyway.

As a result, the County adopted buffer widths found nowhere in the scientific record, 50 feet for all urban shorelines and 100 feet for all rural and semi-rural shorelines – stating, for example, that they estimated that the urban area’s new 50-foot buffer was “more than adequate” to protect whatever functions may be present.

The growth board approved the County’s buffers with the caveat that the County could correct or refine its assumptions by developing a scientific record during the SMP update process. The growth board noted that the SMP update process will require that the County employ more “fine grained” science that is “directly keyed to site-specific functions and values” to refine its critical area designations or de-designate other areas.

KAPO challenged the adopted critical areas ordinance and its uniform buffer criteria. The case has now been in the courts for over five years. In the latest evolution, a January 4, 2011 decision of the Division II Appeals Court upheld the ordinance, saying the county could rely on and estimate protective measures based on science developed for a different type of critical area (exactly opposite to an earlier appellate decision). The case is currently on request for remand to the state supreme court.

Shoreline Buffer Science:

Based on the above-chronicled history, it would appear difficult, at best, to translate the Best Available Science of the county’s CAO ordinance into “the most current, accurate, and complete scientific or technical information available” requirements of the SMA.

For starters, the uniform buffer widths imposed under the existing CAO do not fit the SMA standard that only “wetlands” and possibly some “critical saltwater habitat” require buffering.

Furthermore, as noted in our letter of December 2, 2010, the county’s current scientific studies do not begin to meet WAC 173-26 criteria for science, let alone the county’s stringent scientific criteria for the SMP, contained in the SMP Scientific and Technical Information Policy, adopted by the County Commissioners on February 28, 2011.

We would offer that no one has produced peer-reviewed science that demonstrates that singlefamily shoreline residences, as found throughout Kitsap County, are incompatible (i.e. harmful) to the identified critical saltwater habitats. Indeed, the science that has been presented appears to confirm that the saltwater habitats are unaffected by the presence of these residences, their landscaping, and even their bulkheads.

Don Flora is a PhD scientist with extensive background in riparian research management. He has extensively reviewed the available peer-reviewed literature on buffers and has written several papers discussing the scientific misconceptions related to buffer zones. Some of his papers on this subject are in the volume Puget Sound Shoreline Science Review, which has been provided to the county. His work suggests, among other things, that using the wider buffers of the latest CAO has almost no benefit, and that grass lawns are likely more protective than native vegetation.

As reported to the county in various letters and scientific review papers provided by KAPO and others, the Battelle nearshore studies for Kitsap County and Bainbridge Island show essentially no statistical relationship between shoreline residential development and nearshore habitat conditions. Since the current residential shoreline configuration largely precedes CAO-imposed buffering, it would appear that existing homeowner’s land-care practices are already proven effective in protecting the nearshore, without county imposed buffering rules.

A 2009 report titled Protection of Marine Riparian Functions in Puget Sound, Washington, authored by Jim Brennan and others, is being promoted by the WA Department of Ecology as guidance for shoreline buffers. This report, which falls into the category of gray literature, should be viewed with great skepticism. It not only contains numerous errors, it also falls victim of attempting to apply non-related studies of feedlots, erosion-prone farms, and headwater streams to marine shorelines.

Don Flora has written a comprehensive, critical analysis which discredits the report’s findings – stating “most of the Brennan paper’s scientific sources are irrelevant to tidewater buffering.” Don further notes the inappropriate attempt to apply one-size-fits-all buffers to a diverse shoreline, and he criticizes the improper use of averages and ranges in this attempt.

Dr. Kenneth M. Brooks, a respected marine biologist, concurred, stating in a letter to Dr. Flora: “I could find no rigorous analysis or science in the document. Rather it reads as the opinions of bureaucrats with an extreme environmental agenda, which includes a diatribe against all human activity in the vicinity of shorelines.” Additionally, Dr. Brooks questioned the scientific qualifications of the authors who wrote the report.

Dr. Brooks, who is eminently qualified, has himself extensively reviewed the scientific literature related to buffers and has prepared a number of scholarly papers on the subject. One of these is titled Supplemental Best Available Science Supporting Recommendations for Buffer Widths in Jefferson County, Washington. While this study is directed toward wetland buffers, it contains a careful analysis of much of the available scientific literature on buffers in general – which merits its review by Kitsap County.

The County’s SMP General Goals and Policies Subcommittee was presented with a draft goal that referenced a WA Department of Ecology report titled Protecting Aquatic Ecosystems: A guide for Puget Sound Planners to Understand Watershed Processes. It was pointed out to the county that this document is applicable only to the upland freshwater environment and, with the exception of estuaries, it is not applicable to analyses intended to protect the county’s saltwater shoreline environment from shoreline residential development.

Buffer precedence:

It should be noted that the Department of Ecology grants wide latitude to local governments in the establishment of buffers. For example, in September 2009, Ecology approved a 35-foot setback for shoreline residential designations on Lake Sammamish in the City of Redmond’s SMP update — thus acknowledging the low impact of single-family residences on the adjacent aquatic environment. If the county does their scientific homework, there is no reason to suspect that the pre-existing 35-foot setback couldn’t be approved for Kitsap’s residential shorelines.

The Pierce County experience recognizes that not all marine shoreline is critical habitat. In 2006, on a remand order from the Central Board, Pierce County used a scientific study to identify and designate approximately 20 miles of its 179 miles of shoreline as salmon habitat, thus applying a discreet use of buffers on the saltwater shoreline.

It should also be noted that local jurisdictions have the ability to reject arbitrary, non-scientific buffer widths requested by the Department of Ecology. On May 5th, 2011, the Burien City Council, by consensus, rejected Ecology’s request for a 50-foot buffer plus an additional 15-foot setback on the developed residential marine shoreline. The council, instead, directed staff to retain the existing 20-foot marine buffer with no setback (as originally submitted to Ecology in the SMP update) in preparing their response to Ecology.

Conclusions and recommendations:

The county has an obligation to its citizens to protect their interests in their shoreline property while ensuring no net loss of ecological function from future development. This requires strict adherence to the law, WAC 173-26, which requires that the most current, accurate, and complete scientific or technical information available is used in decision-making, including buffer designations.

Simply rolling over a flawed, one-size-fits-all buffer policy, that employs non-scientific, precautionary-principle oversized buffers, does not meet this standard. Nor does the use of flawed studies such as the Battelle nearshore report or the Brennan Marine Riparian study.

The efforts of Dr. Flora and Dr. Brooks to assemble and analyze credible shoreline and wetland science should be welcomed by the County – and used as a foundation for the SMP update. Employed properly, this approach will lead to correct, scientifically defensible decisions for buffers and other program elements.

By Bob Benze, environmental engineer. Sent on behalf of the Kitsap Alliance on May 13, 2011, to Larry M. Keeton, Director, Kitsap County Department of Community Development, et al, 619 Division Street MS-36, Port Orchard, WA 98366-4682

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