Category Archives: Critical Areas Ordinance

Supreme Court hears “phantom frog” case

As a child, Edward Poitevent’s family cut down Christmas trees on their lumber-rich land in Louisiana, and one day he’d like to leave the property to his own children. But federal bureaucrats jeopardized his legacy when they declared nearly 1,500 acres of his family’s private land as a critical habitat for the dusky gopher frog—a species not seen in the state for more than 50 years. Neither the Endangered Species Act nor congressional intent justifies such government-sanctioned property theft. Represented by PLF, Edward sued and on October 1st, 2018, he will join another affected property owner, Weyerhaeuser Company, at the U.S. Supreme Court to defend their constitutionally protected property rights. Oral argument held at U.S. Supreme Court on October 1, 2018. Continue reading

Study: Impact of Hirst Decision Will Have Far-Reaching Implications on State’s Economy

On October 6, 2016, the Washington State Supreme Court ruled in the so-called “Hirst” case. The implications of this decision have the potential of eliminating all or nearly all new household or exempt wells in rural Washington.

During the 2017 legislative sessions, press conferences of all four corners (both caucuses in both houses) and the Governor’s office repeatedly told the press there would be a Hirst fix, yet it didn’t get done. BIAW commissioned HR2 Research and Analytics to examine the economic impacts resulting from the Court’s decision. The results from the study reveal a significant impact to rural communities and residents as well as other parts of Washington state:

  • $6.9 billion lost in economic activity each year in Washington, predominantly in rural communities
  • $452.3 million in lost employee wages due to the impacts of Hirst, annually
  • Nearly 9,300 lost jobs (FTEs) in rural Washington, annually
  • $392.7 million in lost taxes to state and local governments, annually
  • $4.59 billion in losses to the construction industry, annually
  • $37 billion in lost property values in areas impacted by Hirst
  • $346 million in property taxes shifted to other properties in Washington due to the decision

The HR2 report indicates that the Hirst decision will have exponential and far-reaching impacts in Washington state, with large effects and costs to rural communities.

To read the entire report click here.

Building Industry Association of Washington Press Release



Lawmakers Urge Fix for Hirst Decision in Wake of New Study Showing $7 Billion Loss in Economic Activity Annually

Independent Study: Report Details Lower Employee Wages, Lost Jobs and Reduced Tax Revenue, Among Other Concerns

Several state lawmakers are voicing their desire to overturn a state Supreme Court water-rights decision after a study released by the Building Industry Association of Washington estimated that the Hirst decision would cost the state $6.9 billion annually in lost economic activity.

The decision makes it difficult and costly for rural and suburban property owners to get permits for new wells, lawmakers have said. The ruling essentially placed the burden of water availability studies on local jurisdictions and property owners. Previously, Department of Ecology data could be used to determine water availability. Continue reading

Call the Legislature back to pass capital budget, fix water-rights ruling

Former Washingon Gov. Dan Evans calls on the governor and Legislature to, finally, pass a capital budget and a fix for the state Supreme Court’s Hirst decision, which has halted development in some rural areas.

By Daniel J. Evans
Special to The Times

It’s time for Gov. Jay Inslee, together with Republicans and Democrats in both houses of the Legislature, to put partisanship aside and solve two pressing problems. Washington state needs a capital budget and a fix to the state Supreme Court’s Hirst decision, which has impacted homebuilding in rural areas.

As construction costs rise, every day that goes by without passage of the state’s capital budget means that taxpayers will pay more for building schools and other projects, and it means that needed construction is delayed.

Equally important is modification of the law in response to the Hirst decision. Hirst will shatter the American dream for some Washington state families because they may not be able to obtain water on the properties they purchased unless the Legislature enacts a solution to that decision.

A recent study by the Building Industry Association of Washington suggested that $6.9 billion in economic growth every year will be lost if the Hirst decision stands. Even if the assumptions in the analysis are exaggerated, and the court decision costs the state only $3 billion annually in economic activity, would that be acceptable? Of course not, especially in rural areas that are desperate for an economic boost. Continue reading

Citizens Guide to Kitsap County Critical Area Ordinance Revision

The original Critical Area Ordinance was adopted by Kitsap County in 2005. Let’s look at what we have learned since then

CAO Facts

The sole purpose of the CAO must be protect and preserve those areas critical to the existence of wildlife and human habitation in Kitsap County. If that is the case then the following facts are pertinent to the ongoing discussion.

  1. No Baseline. There has never been a “baseline” of existing conditions established for “critical areas” in Kitsap County to support determination of effectiveness of the controls established in 2005. This is essential if restrictions like “no net loss” are to be imposed by the CAO.
  2. No Monitoring. There has been no monitoring or ongoing analysis of identified critical areas to determine if the controls established in 2005 are effective or not.
  3. No Resident Species. Based on the DOE listings there are no terrestrial species resident in Kitsap County that are threatened or endangered or for which special controls must be established. Based on a NOAA study released in 2005 there are no streams or creeks in eastern Kitsap that are the indigenous (natural) home for threatened or endangered salmonid species. The revised CAO does not identify any species of interest in Kitsap County.
  4. 4. No Inventory. Kitsap County does not have a reasonable inventory of areas that might be considered “critical” under the 2005 ordinance or this revision. The County has no clear understanding of the actual areas they are designating as “critical” and thus no ability to determine the actual impact of the Ordinance.
  5. Limited Application. The controls on “critical areas’ are imposed only if a building permit application is submitted. All other similar areas in the County are not controlled.
  6. Disproportionate Cost. The cost of implementing the CAO falls to the individual property owner/developer because they are required to effectively prove that no critical areas exist on the land they wish to develop. While the property owner tries to prove a negative the County has the final decision and is not bound by the various studies and plans they require.
  7. Ignored Legal Precedents and Findings. GMHB finding and various court cases have been ignored. Consideration and inclusion of those finding would significantly reduce the scope and impact of the CAO. Without inclusion of those findings, individual property owners will be required to undertake litigation on matters already determined.
    1. Nollan v. California /Coastal Commission (1987)and Dolan v. City of Tigard (1994): US Supreme Court There must be a direct relationship (nexus and rough proportionality) between the environmental assault and the regulation.
    2. Swinomish Indian Tribal Community s. Western Washington Growth Management Hearings Board (2007):  Benchmarks are required, naming species and specific locations where they exist that the county is trying to protect.
    3. McCready v. City of Seattle (1994), Washington Supreme Court right of entry requires warrant
    4. D. Lucas v. South Carolina Coastal Commission (1992), US Supreme Court: prohibits takings via regulation that disallow construction enjoyed by surrounding properties. (Throughout the county, pre-existing homes are built in what are now considered “buffers”.)
    5. E. S. Army Corps of Engineers v. Hawkes Co. (2016) US Supreme Court precludes off-site compensatory mitigation requirement and Hearing Examiner is precluded from making the “final decision”
    6. Koontz v. St. Johns River Water Management District (2013)US Supreme Court: precludes off-site mitigation and “mitigation banks” (mitigation funds) and buffer averaging, all of which are found in the CAO.  Buffer averaging also violates both Nolan and Dolan.

8. Denied Public Process. The revision to the CAO was undertaken without actual participation of the public and specifically property owners who would be most impacted by the ordinance. Although numerous inputs have been made by citizens to the March 7 draft revision, there has been no further update draft available for public review. Most of the public comments have been either ignored or determined to be of no consequence by DCD without discussion or debate. Because DCD is delegated the authority to implement and enforce the Ordinance, they should not be the sole arbiter of content or scope.

These are the Facts – Now it is up to you to decide if you want this as your law


Commissioners to hold hearings on the Critical Areas Ordinance

(Port Orchard, WA)  The Board of County Commissioners is scheduled to hold three public hearings on the Draft Critical Areas Ordinance (CAO). These hearings follow a public review period in March, Planning Commission hearings in April/May, and Planning Commission Findings and Recommendations on June 6, 2017.

The hearings on the Critical Areas Ordinance will be on the following dates:

Tuesday, June 20, Poulsbo City Hall
(200 NW Moe Street, Poulsbo, WA 98370)- SPECIAL MEETING

  • Open House @ 4:30 PM
  • Hearing @ 5:30 PM

Wednesday, June 21, Silverdale Water District
(5300  NW Newberry Hill Road, Suite #100, Silverdale, WA 98383)- SPECIAL MEETING

  • Open House @ 9:00 AM
  • Hearing @ 10:00 AM

Monday, June 26, Commissioners Chambers, Kitsap County Administrative Building (619 Division Street, Port Orchard, WA 98466)

  • Open House @ 4:30 PM
  • Hearing @ 5:30 PM

The Kitsap County Critical Areas Ordinance is undergoing a required update under the Washington Growth Management Act.  The CAO (Kitsap County Code, Title 19), is the portion of local code which provides development standards for protecting the environment and minimizing risk to human safety. Critical Areas include:

  • Wetlands,
  • Fish and Wildlife Habitat Conservation Areas,
  • Geologically Hazardous Areas,
  • Frequently Flooded Areas, and
  • Critical Aquifer Recharge Areas.

Questions ask the County Commissioners:

  1. What are the Threatened and Endangered Species that the county is trying to protect? The county does not identify critical species.
  2. Where are the Critical Species?  The county defines Wildlife conservation areas but doesn’t designate where they are.
  3. How are we to protect them? The county does not state how they propose to protect the Critical species. Specific buffers and restrictions are not defined.
  4. The county requires costly professional surveys to identify and categorize wetlands then imposes generic buffers. It doesn’t tailor the buffer requirements to the specific wetland. Use site specific buffers.
  5. The county has no program to establish what wetland and wildlife conditions exist. Establish a baseline.
  6. The county has no monitoring program to measure the effectiveness of protective measures.
  7. The Enforcement Right of entry paragraph 100.17.065 violates state law. Comply with RCW 59.18.150 Searches by code enforcement officials for inspection  purposes.
  8. Suquamish salmon studies has identified unfiltered storm water runoff is a major factor in returning salmon die off. Support programs that identify and resolve problems rather than place passive restrictions on landowners.
  9. Who are the knowledgeable personnel that administer this program? Establish a training and accreditation program for DCD personnel.

More information is available on the County’s CAO webpage .

KAPO’s Submission to the Planning Commission on the Critical Ares Ordinance Update

KAPO Testimony to the Kitsap County Planning Commission on the Critical Ares Ordinance dated 2 May 2017   Ltr-KAPO to PlanComsn 5-2-17

Our testimony should be influential in what is included in an updated CAO, if any changes in the 2005 adopted Ordinance are to be made, but so far there is no indication it has or will. Thus, KAPO concludes the ordinance as presently drafted is vulnerable in an appeal. If our assessment is correct, Kitsap County will be spending the public’s money to rectify issues after the fact that could have been addressed in the drafting process or at the very least in the public hearing consideration process. Based on appearances, the Draft CAO Update is nothing more than proposed legislation for the sake of adopting more restrictive rules. So far, no justification has been presented by DCD staff for:

a.) what the values and functions are of so-called Critical Areas,
b.) what measures, if any, are necessary to protect those values and functions,
c.) what consequences redound to the County’s citizens if those undefined values and functions are somehow compromised,
d.) what data has been collected to demonstrate a problem exists that justifies regulatory measures and finally
e.) what is the minimum necessary to address the issues presented in the analysis that documents or documented a problem. Clearly the “problem” has not been defined and yet draconian rules (even more so than found in the 2005 Cao) are being proposed to supposedly solve a problem that may not in fact exist.

KAPO remains unalterably opposed to this proposed Draft CAO Update or any and all other regulations proposed for regulation sake.