Regulation of Wetlands in Western Washington Under the Growth Management Act

• Publication year: 1993
• Citation: Vol. 16 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 16, No. 3SPRING 1993

Regulation of Wetlands in Western Washington Under the Growth Management Act

Alison Moss(fn*)

Beverlee E. Silva(fn**)

I. Introduction

Wetlands, simply defined, are lands such as marshes, bogs, or swamps that are seasonally or periodically wet.(fn1) Wetlands serve numerous significant biological and environmentally valuable functions. They provide not only fish and wildlife habitat, but they also aid in water purification, maintenance of groundwater supplies, sediment entrapment, floodwater retention, shoreline stabilization, and maintenance of streamflows.

Wetlands protection has long been an important issue in the central Puget Sound. With the passage of the Growth Management Act (GMA),(fn2) all counties and cities within the state are now required to adopt regulations "protecting" critical areas, including wetlands. This requirement furthers the GMA's environmental goal to "[p]rotect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water."(fn3)

This environmental goal is, however, only one of the GMA's thirteen goals.(fn4) All of these goals are intended to guide the creation not only of the comprehensive plans, but also of the development regulations that implement the comprehensive plans. Wetlands regulations are "development regulations," as that term is used in the GMA. Thus, all thirteen goals should be considered in developing local wetlands regulations.(fn5)

The GMA expressly provides that these thirteen goals are not listed in order of priority.(fn6) It does not, however, explain how the goal of environmental protection should be balanced with the GMA's other twelve planning goals. This lack of guidance is problematic because the adoption of critical areas regulations is the first task local governments must complete under the GMA, preceding adoption even of the comprehensive plans in those jurisdictions required to adopt comprehensive plans. Consequently, jurisdictions are developing these regulations with little understanding of how they will mesh with such competing goals as the reduction of sprawl, the encouragement of economic development and affordable housing, and the protection of property rights. Predictably, many local governments are encountering problems.

A task force of the Economic Development Council of Seattle and King County recently examined the regulatory treatment of wetlands following the adoption of the GMA.(fn7) The task force looked at the permit process at the local, state, and federal level and examined key issues related to the protection and management of wetlands. Describing the current process as a "quagmire," the task force summarized the principal issues as follows: (1) the current regulatory system requires too much money to be spent on the permit process, rather than on resource management and protection; (2) the current regulatory system's focus on individual properties fragments the resource and is, therefore, often counter-productive to wetlands management and protection; (3) the permit process does not offer equal access to all applicants; and (4) the permit process involves duplicate review of projects by the federal and local government without offering consistent criteria for review.(fn8) In cases where the state also has jurisdiction, triplicate review compounds the problem.

This Article will explore these and related issues arising under the wetlands regulatory scheme in Washington following the adoption of the GMA. It will show how this complex, multi-layered regulation scheme is sometimes duplicative and inconsistent and, ironically, may not always result in the most effective protection of wetlands.

Accordingly, Section II will discuss the GMA's requirements regarding wetland regulations. Section III will address the Department of Ecology (DOE) Model Wetlands Protection Ordinance (Model Ordinance)(fn9) and the problems the Model Ordinance presents for wetlands regulation under the GMA. And finally, Section IV will suggest a framework for local governments to consider in reevaluating their wetlands regulations for consistency with their comprehensive plans.

II. GMA Requirements for Wetland Regulations

A. Regulatory Background

In response to heightened state and federal concern regarding wetlands protection, the Washington State Legislature considered, but failed to adopt, state-wide wetlands management bills in both 1989 and 1990.(fn10) As a result of the failures in 1989, Governor Booth Gardener issued Executive Order 89-10, establishing a goal of no-net loss of wetlands acreage and function.(fn11) Against this backdrop, although it did not adopt a comprehensive wetlands bill in 1990, the legislature adopted the GMA, directing all local governments to designate critical areas and all local governments planning under the GMA to adopt development regulations(fn12) "precluding land uses which are incompatible with" wetlands. Governor Gardner then issued Executive Order 90-04, which directed various state agencies "to the extent legally permissible" to take various actions to protect wetlands.(fn13) Among other things, Executive Order 90-04 expressly directed DOE to assist the Department of Community Development (DCD) in developing "wetlands protection policies and standards for the implementation of grants programs and to guide the development of local government comprehensive plans and development regulations under the growth management bill passed by the 1990 legislature."(fn14) In response, DOE prepared, with virtually no public participation, the Model Ordinance.(fn15) In 1991, the legislature amended the GMA to require that all cities and counties in the State of Washington, including those required to or choosing to plan under the GMA, adopt development regulations that "protect" those critical areas.(fn16)

B. Adoption of Wetlands Regulations

The GMA defines "critical areas" as including (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.(fn17) For purposes of this Article, we will concentrate on wetlands. Counties and cities planning under the GMA were to have adopted wetlands regulations by September 1, 1991. The deadline for all other counties and cities was March 1, 1992.(fn18) If counties and cities were unable to meet their deadlines, DCD was permitted to grant a one hundred eighty day extension.(fn19)

Following the adoption of comprehensive plans, each jurisdiction must review its critical areas designations and regulations for consistency with the new comprehensive plan. At that time, the designations and regulations may be altered to ensure such consistency.(fn20) Thus, the initial critical areas regulations are commonly referred to as "interim regulations." The requirement that local governments revisit their wetlands regulations affords them an opportunity to address many of the problems that local governments elsewhere are encountering.(fn21)

C. Scope of Wetlands Regulations

The GMA provides little guidance as to the proper scope of wetlands regulations. The major "scope" issues involve determining which wetlands should be protected and to what extent. These issues arise because not all wetlands perform equal functions and not all activities are equally harmful to those functions. In determining which wetlands deserve protection and what degree of protection is appropriate, each jurisdiction, either implicitly or explicitly, weighs economic needs and environmental interests.(fn22)

In Clark County Natural Resources Council (CCNRC) v. Clark County,(fn23) the petitioners, challenging the Clark County Wetlands Protection Ordinance, argued that the GMA requires local governments to adopt development regulations governing all wetlands and virtually any activity that could have an adverse impact on wetlands, including activities that may alter the wetlands' water chemistry.(fn24) The petitioners challenged the exemption of small wetlands, prior converted croplands, and riparian wetlands less than five feet wide that are otherwise regulated under the county's Shoreline Master Program.(fn25) The petitioners also challenged the exemption for "marginal" wetlands, which were defined by the ordinance as either isolated wetlands having only one wetland class and a predominance of exotic species or wetlands that had been legally altered and that would not revert to wetlands.(fn26)

In rejecting petitioners' argument regarding wetlands regulation, the Hearings Board looked to the GMA's legislative history, stating: Because of [the] language change [from "precluding land uses that are incompatible with the critical areas" to "protect"] and the overall scheme of the [GMA] which authorizes discretion by local government in formulating policy decisions, we hold that [the GMA] does not require regulation of each and every wetland.(fn27)

The Board then specifically held that each of these activities, with regard to the challenged activities exempted from regulation, was within the reasonable range of discretion afforded to the county.(fn28)

After CCNRC, therefore, it appears that the GMA allows local governments to differentiate between wetlands, to make value...