By Rob Burns, The Aberdeen Daily World Writer, 8/29/2001
OLYMPIA - Rural counties and property owners 1, state Department of Ecology 0.
But the "country mice" say they know the battle over shoreline management isn't over.
Two years ago, Ecology announced tougher, more comprehensive shoreline rules that were widely criticized in rural communities as too extreme and anti - landowner. "Environmental communism," some called it. An unconstitutional "taking" of private property, said others.
On Monday, the independent state Shoreline Hearings Board told the department to rewrite the regulations, possibly setting up a new fight in court.
If appealed, the case would go to Thurston County Superior Court. Given the matter's statewide importance and the constitutional issues involved, it also could be sent swiftly to the state Supreme Court.
A majority of the six - person board ruled in favor of the guidelines' opponents, concluding that portions of the guidelines meant to update the 30 - year - old Shoreline Management Act were illegal and that Ecology had overstepped its authority.
However, the board validated the department's most basic premise - the need for tougher protections of Washington's shorelines.
Aimed at reducing erosion, flooding and pollution, the rules Ecology had adopted placed limits on everything from home and dock building to industrial development.
"These rules would have made most of the land in Grays Harbor unusable," said Grays Harbor County commissioner Dan Wood.
"We hope that (Gov. Gary Locke) will look at the ruling, see that the DOE violated the law and say they won't defend (the rules). Why waste taxpayer money defending an illegal action?"
Doug Camenzind of Lebam, one of the most vociferous opponents of the guidelines, was elated but wary. "We've been saying all along that they didn't have legislative power to write these guidelines and that the public meetings conducted weren't legal.
"This is a great day for property owners, but the battle isn't over," he added. "We're happy that the board agreed with us little guys over the big urban counties and politicians who wanted these guidelines. We're going to continue to fight."
"We need desperately to put these rules in place," People for Puget Sound's Bruce Wishart told the Associated Press. "We don't have unlimited amounts of time to do this type of work before salmon are extinct in Washington."
Thomas Bjorgen, an attorney representing environmental groups, said, "The board has, for the first time, acknowledged the importance of not just preventing further destruction of degraded shorelines, but restoring areas that have been degraded."
The Department of Ecology, or even the opponents of the guidelines, have 30 days to appeal the board's decision and send the debate into court. If no appeal is filed, the department will have to go back to the drawing board to draft new guidelines.
More than 50 petitioners, through a lawsuit brought to the Hearings Board by the Association of Washington Business, filed complaints over the guidelines. The petitioners included the Grays Harbor Chamber of Commerce; Grays Harbor and Pacific counties; the cities of Aberdeen, Hoquiam, Ocean Shores, Westport and South Bend; the Washington State Farm Bureau and Camenzind and his wife Karen. The Pacific County farmers played a key role in organizing rural protests.
"We're disappointed in the decision of the board, but we are very encouraged that the board did not overturn the heart - and - soul provisions of the guidelines," said Sheryl Hutchinson, spokeswoman for the Department of Ecology.
"We're going to need time to review the decision and read the three separate opinions that were written," she added. "This is a very complicated decision and one that deeply divided the board. Once we review what the board wants us to do, we'll take the next step.
"But whatever course we choose, we'll have a higher level of shoreline protections mandated by state law."
The most serious flaw the board found was the department's attempt to implement the federal Endangered Species Act in state rules. The board said the Department of Ecology needed approval from the Legislature to implement aspects of the act.
Ecology wrongly assumed it had that authority, according to the board's majority opinion.
Ecology does have leeway within the federal Clean Water Act and the Clean Air Act, but not with the Endangered Species Act, the board said.
Phyllis Shrauger, former mayor of Hoquiam and a member of the Hearings Board as a designee for the Association of Washington Cities, voted with the majority.
"The guidelines in this respect constitute an improper amendment of the (Shoreline Management Act) to require master programs to implement the (Endangered Species Act). The guidelines are therefore deemed invalid," the board's majority concluded.
"This was a pleasant surprise for us," said state Rep. Brian Hatfield, D - Raymond. "In the past, rulings like this haven't been in our favor and this allows rural counties to go to the department and their urban allies and say that the regulations went too far. This is good news, but from here on out, we need to stay vigilant as to what the department's next move is."
The Hearings Board also ruled that three other arguments filed by the petitioners were valid. Those points were: violation of open - meeting laws and failure to give due notice of public comments; failure to submit a cost - benefit analysis, a rule implementation plan and a small business economic impact statement for public review, and requiring "conditioned letters of exemption."
The Hearings Board upheld several key components of the guidelines. For example, it said Ecology can ask for restoration of damaged shorelines and the preservation of "ecological systems" concerning animal health as well as water quality, said Hutchinson, the department's spokeswoman.
The Hearings Board also "sidestepped the (unfunded mandate) issue," said Wood. In other words, it said it could not force the Legislature to fund the cost of compliance with the guidelines.
"The board said that it did not have the authority to do that and that issue may have to be taken up in court," the county commissioner added.
Senate Majority Leader Sid Snyder, D - Long Beach, said that once acceptable guidelines are formulated, the Legislature would find funding for compliance and could extend time limits for implementation of the rules for local governments.
"What we as a Legislature would like to see now is more realistic guidelines," said Snyder.
"I would like to see them work with the Legislature, rather than against it, for rules that we can all live with. We want to protect the habitat in our sensitive areas, and do it without taking property away from land owners."
The shoreline rules update, mandated by the Legislature in 1995, took effect in November. The old rules were 30 years old.
Gov. Locke called the new rules common - sense ways to protect the environment.
At an anti - rules rally in February, someone brandished a hand - lettered sign seeking "Bounties for Bureaucrats." At another gathering last summer, maverick Republican state Sen. Harold Hochstatter of Moses Lake quoted a patriotic poem and warned members of the crowd they might have to start shooting to protect their rights.
The shoreline rules have passionate defenders, too - people who have watched in dismay as development has eaten up formerly pristine shorelines. Oyster farmers and others who rely on clean water to make a living say the state needs tougher rules.
On the Net:
Department of Ecology: www.ecy.wa.gov
Shorelines Hearings Board: www.eho.wa.gov/SHB.htm
People for Puget Sound: www.pugetsound.org
Rob Burns is a Daily World writer and editor. He can be reached at 532 - 4000, Ext. 120, or at rburns@thedailyworld.com. AP writer Rebecca Cook contributed to this report.
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