Regulation of Wetlands in Western Washington Under the Growth Management Act

Regulation of Wetlands in Western Washington Under the Growth Management Act Alison Moss* Beverlee E. Silva** L INTRODUCTION Wetlands, simply defined, are lands such as marshes, bogs, or swamps that are seasonally or periodically wet.' 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), 2 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."3 This environmental goal is, however, only one of the Alison Moss is a partner at Bogle and Gates, Seattle, Washington, where she focuses her practice on land use law. Ms. Moss is the chair of the Seattle/King County Economic Development Council Wetlands Task Force, and she is a member of the Department of Ecology's State Wetlands Integration Strategy Regulatory Reform Work Group. Ms. Moss received her B.A. from Radcliffe College and her J.D. from the University of Chicago Law School. ** Beverlee E. Silva is an associate at Bogle & Gates in Seattle, Washington. Her practice focuses on land use and environmental law. Ms. Silva earned her A.B. and A.M. from the University of Chicago and her J.D. from Northwestern University School of Law in Chicago. 1. A precise definition of "wetland" has become a highly controversial and politically charged issue, perhaps because of the complexity of the regulatory process. See infra part III.A. 2. 1990 Wash. Laws 1972, 1st Ex. Sess., ch. 17 (amended by 1991 Wash. Laws 2903, 1st Sp. Sess., ch. 32 and 1992 Wash. Laws 1050, ch. 227) (codified at WASH. REv. CODE ANN. ch. 36.70A (West 1991 & Supp. 1993), WASH. REV. CODE ANN. ch. 47.80 (West Supp. 1993), and WASH. REv. CODE ANN. ch. 82.02 (West 1991 & Supp. 1993)). 3. WAH. REv. CODE ANN. § 36.70A.020(10) (West 1991). 1059 1060 University of Puget Sound Law Review [Vol. 16:1059 GlMA's thirteen goals.4 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. 5 The GMA expressly provides that these thirteen goals are not listed in order of priority.' 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. 7 4. The planning goals include the following- encourage development in urban areas where adequate public facilities and services already exist or can be efficiently provided; reduce sprawl; encourage affordable housing for all economic segments of the population; encourage economic development; protect property rights; process permits in a timely manner to ensure predictability; maintain natural resource-based industries including timber, agricultural and fisheries industries; retain open space and develop recreational opportunities; encourage citizen involvement in the planning process and interjurisdictional coordination; ensure adequate public services and facilities; and encourage historic preservation. Id, § 36.70A.020(l)-(13). 5. See Clark County Natural Resources Council v. Clark County, Western Washington Growth Planning Hearings Board, No. 92-02-0001, at 2-3 (1992) (CCNRC). CCNRC was the first case to come before any of the three Growth Planning Hearings Boards established to hear appeals of comprehensive plans, development regulations, and population projections. The Western Washington Growth Planning Hearings Board hears appeals from all of Western Washington except King, Kitsap, Pierce, and Snohomish Counties and the cities within those counties. These four counties and the cities within them collectively comprise the central Puget Sound. See WASH. REV. CODE ANN. §§ 36.70A.250-.300 (West Supp. 1993). The Hearing Board's decision in CCNVRC was appealed to the Thurston County Superior Court, which dismissed the case with prejudice on September 27, 1993, for failure to serve the Board within 30 days as required by the Administrative Procedure Act. 6. WASH. REV. CODE ANN. § 36.70A.020 (West 1991). 7. The task force consisted of a wide variety of interested professionals, including 1061 Guidance For Growth 1993] 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.8 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 Wetla (...truncated)