Supreme Court of WA throws out challenge to Jefferson County SMP

On February 7th the Washington state Supreme Court threw out the challenges to the Jefferson County Shoreline Master Program (SMP), by the Olympic Stewardship Foundation. This long running challenge finally ends the attempts to stop the county and Ecology from setting county standards for setbacks and other uses of the nearshore. It should also serve as a warning to others trying to challenge SMPs that it is extremely difficult to stop them from becoming law, after the fact of enactment. Involvement up front is much more useful. Coming to the table to help debate the issues as they are brought up, rather than sit on the sidelines and threaten legal action if your demands are not met, just seems like a losing strategy in this particular situation.

To all the hard working people who volunteered their time to give input and review, and to the County Commissioners who took the stance that the public favored stricter protection over less strict, thank you.

5 counties warned state about salmon-farming back in 2012 – Everett Herald

A good review of the work done in the last ten years fighting net pen salmon. Here in Jefferson County, it was work by the Jefferson County Marine Resources Committee, which voted to recommend supporting the SMP language that would ban net pens in the county, and followed by the support of all three county commissioners, especially now retired Commissioner Phil Johnson.

Not long ago, some of the loudest political voices railing against the danger of farming Atlantic salmon in the waters of Puget Sound came from within chambers of county governments. Back in 2012, leaders of Island, Whatcom, Jefferson, Skagit and San Juan counties — Democrat and Republican — called for a moratorium on such fish farm operations. They also sought authority to include a ban on them in their respective shoreline management plans. They reached out to executives in state agencies as well as former Gov. Chris Gregoire and, later, Gov. Jay Inslee. They lobbied lawmakers and sought backing of tribes in their quest. “While Washington state missteps with outdated science, local governments desiring to recognize modern science, job, and environmental and public threats, ask that they be permitted to ban these open finfish feedlots before they destroy the native species, their habitats, and the jobs we have worked so diligently to protect,” former Island County Commissioner Angie Homola wrote in a six-page issue paper delivered to Inslee in August 2014. Jerry Cornfield reports. (Everett Herald)

Mussels help measure contaminants in Puget Sound – KING

Photos by Al Bergstein of the Jefferson County Marine Resources Committee.

Volunteers will spread out across Puget Sound on Friday night to install cages filled with mussels, which will help scientists track the health of the ecosystem. “They will be zip tied to sides of the cage, and they will sit there suspended above the bottom,” said Puget Soundkeeper Alliance Executive Director Chris Wilke. A top cover keeps predators out, and for 90 days, water will flow through. It allows for scientists to record contaminants over a larger period of time and compare to past results. The mussels are donated by Penn Cove Shellfish and the cage placement is done almost entirely thanks to volunteers. Alison Morrow reports. (KING)

EVENT: Farm Bureau to present on Hirst Decision 4/12 @7PM Chimicum Grange

Al Latham just alerted me that a fellow from the Farm Bureau will be doing a presentation on the Hirst Decision (on building permits and water rights) and current legislative activity around exempt wells at the Chimacum Grange, 7pm Wed April 12.

What is the Hirst Decision? It’s an extremely important new ruling that addresses an ongoing battle over development vs. water rights. Let me copy from the Dept of Ecology web site:

“A recent Washington State Supreme Court decision has changed how counties decide to approve or deny building permits that use wells for a water source.

In the Whatcom County vs. Hirst, Futurewise, et al. decision (often referred to as the Hirst decision), the court ruled that the county failed to comply with the Growth Management Act (GMA) requirements to protect water resources. The ruling requires the county to make an independent decision about legal water availability.


We protect rivers and streams across the state by creating instream flow rules, which set the amount of water necessary for protecting fish, wildlife and recreation. In 1985, we adopted an instream flow rule for the Nooksack River (WAC 173-501) in Whatcom County. This rule closed most streams in the watershed to new water right permits but allowed landowners to use permit-exempt wells in most of the area. Whatcom County’s development regulations followed our instream flow rule.

A reliable, year-round supply of water is necessary for new homes or developments. Before the Oct. 6, 2016, court decision, many counties relied on what the Department of Ecology said about whether year-round water was available. This court decision changes that – counties now have to make their own decisions about whether there is enough water, physically and legally, to approve a building permit that would rely on a well.


The case directly relates to Whatcom County but appears to set legal precedent that applies in other counties where there are instream flow rules that were not intended to regulate permit-exempt water uses. It is unclear how the decision affects areas of the state where there are no instream flow rules. Counties are working to review the decision and what it means for them. Contact your county’s building, planning or health departments if you have questions about how the Hirst decision may affect you.

Key points

  • Science has shown that rivers and streams are generally connected to groundwater. The Washington State Supreme Court said that water is not legally available if a new well would impact a protected river or stream, or an existing senior water right.
  • If your county determines that water is not legally available for your new use, the county would not be able to approve your building permit – even if you have already drilled a well.
  • We are providing technical assistance to counties as they determine their next steps. Our priority will be to provide information about the status of stream closures and instream flows.
  • Anyone with questions about how the decision affects them should contact their county government.


U.S. Supreme Court rejects KAPO appeal -KItsap Sun

Excellent news. And update based on getting more stories out.
The U.S. Supreme Court has declined to hear an appeal from the Kitsap Alliance of Property Owners, which claimed that Kitsap County’s shoreline buffers were unconstitutional. The ruling upholds the Kitsap County Critical Areas Ordinance as rewritten in 2007, including 100-foot buffers for rural shorelines and 50-foot buffers for urban shorelines.

and here’s KAPO’s side of the story.

State Supreme Court affirms Ecology approval authority for shoreline master programs

As assumed, the SMP process is legal. The lawyer that convinced these guys to do take this case forward must have been laughing to the bank. A cursory read of the laws that the SMP is based on clearly shows what the court *unanimously* affirmed. Their argument about tax law shows how little they understood of the process or perhaps that they were willing to pay a lawyer to grasp at straws.

State Supreme Court affirms Ecology approval authority for shoreline master programs

OLYMPIA – The Washington Supreme Court has unanimously affirmed that the state, not local governments, has final approval authority for shoreline management plans and regulations.

The case was brought before the high court by Citizens for Rational Shoreline Planning, Ronald Jepson and the Building Industry Association of Whatcom County against the Department of Ecology (Ecology) and Whatcom County.

The lawsuit was an attempt to broadly invalidate key protections in Whatcom County’s state-approved shoreline planning and development regulations, also called a shoreline master program. Ecology approved the county’s shoreline program in 2008.

The plaintiffs asserted that because Whatcom County had developed its proposed shoreline master program at the local level, final approval of the county’s updated shoreline program was a local decision.

They claimed some of the requirements in Whatcom County’s shoreline program would violate state tax law generally prohibiting local governments from imposing certain taxes or fees in exchange for development rights.

The 1972 voter-approved Shoreline Management Act was passed to help minimize environmental damage to shoreline areas, reserve appropriate areas for water-oriented uses, and protect the public’s right to public lands and waters.

“The court’s decision clarifies that the collaborative process Ecology and local governments use to manage our shoreline areas is fair, transparent and flexible,” said Ecology Deputy Director Polly Zehm. “We all have a stake in protecting our treasured shoreline resources for ourselves as well as our children and future generations. Our shorelines make Washington a great place to live.”

Under the law, local governments and Ecology work cooperatively on shoreline master programs.

The Shoreline Management Act gives local governments flexibility to tailor their shoreline programs to help respond to local conditions and needs – while fulfilling the statewide vision for shoreline development, protection and uses.

However, the court’s decision recognizes that under state law Ecology is charged with final review and approval authority to ensure each shoreline master program meets state law.

Ecology must also ensure that state requirements negotiated in 2003 among 58 different parties including business interests, ports, environmental groups, shoreline user groups and local governments are being met.

Once Ecology approves a local shoreline master program, the department will help defend the decision against legal challenges.

The plaintiffs’ case had previously been dismissed by the Skagit County Superior Court which was affirmed by the Court of Appeals. The Supreme Court decision affirmed the appellate court.

Washington State Supreme Court Denies Challenge to Critical Areas Ordinance buffers

A win for continuing to protect and restore the Sound and Straits.

This was a petition to appeal the CAO buffers. The opposition wanted to overturn the buffers that were put in place by CAO activities.

Interestingly enough, the Puget Sound Partnership did not get involved or file a friend of the court (amicas) brief. It would be thought that the main proponent of saving Puget Sound would take a stand on this.

Here’s the backgrounder from Tim Trohimovich of Futurewise::


As you may remember, the Hood Canal Environmental Council, People For Puget Sound, West Sound Conservation Council, Kitsap Citizens for Responsible Planning, Judith and Irwin Krigsman, and Jim Trainer joined with Futurewise to appeal the Kitsap County critical areas ordinance update in 2006.   While Kitsap County adopted good critical areas regulations in response to the advocacy of all of us, the regulations had two major weaknesses: small wetlands were not protected; and the marine buffers for the Urban, Semi-Rural, and Rural shorelines areas, which cover 68 percent of the county’s Hood Canal and Puget Sound shorelines, were not adequate to protect important marine resources.  Among the species that required buffers wider than 35 foot wide buffers originally adopted for these areas was the threatened Chinook salmon which extensively use marine shorelines.  Our appeal caused the county to protect all wetlands and to increase its marine buffers from 35 feet to 50 and 100 feet.  The Growth Management Hearings Board concluded several years ago that these amendments complied with the Growth Management Act.

The county’s critical areas regulations, and our win, was challenged by a  group, the Kitsap Alliance of Property Owners (KAPO).  KAPO lost in superior court, but won in the court of appeals on the claim that a state law required these regulations to be included in shoreline master programs not critical areas regulations.  After legislation clarified this issue, Kitsap County and our organizations won when the court of appeals reheard this case.  KAPO appealed this win to the Washington State Supreme Court.  Yesterday, the supreme court denied KAPO’s petition for review.  This means that the supreme court will not hear KAPO’s appeal and that our court of appeals win is the final word in this case.  Several groups including the Bainbridge Homeowners, Common Sense Alliance, Olympic Stewardship Foundation, Building Industry Association of Washington (BIAW), and the so called Freedom Foundation filed briefs in the Washington State Supreme Court urging the court to hear this appeal and overturn our court of appeals win.  The supreme court’s decision not to hear this case terminates KAPO’s appeal.  Since the county has come into compliance, our case is completed too.  A copy of the supreme court order is enclosed.

Kitsap County, after they brought their critical areas ordinance into compliance, was excellent in defending this appeal.  If you have the chance, please thank the Board of County Commissioners and the Prosecuting Attorney.


And this follow up from Christopher Dunagan of the Kitsap Sun..

State Supreme Court rejects KAPO shorelines appeal
OLYMPIA — Washington State Supreme Court has declined to consider a challenge to Kitsap County’s Critical Areas Ordinance — including a requirement for 100-foot buffers along rural shorelines.
Christopher Dunagan 7/18

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