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Jeanie Orr
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From: Jeanie Orr
Sent: Wednesday, June 17, 2009 12:04 PM
To: Michelle McConnell
Cc: AI Scalf; Stacie Hoskins; Jeanie Orr
Subject: FW: Draft SMP
From: Craig Durgan [mailto:durgan@olympus.net]
Sent: Wednesday, June 17, 20099:50 AM
To: #Long-Range Planning
Subject: Draft SMP
Dear Planning Commission,
Please consider these comments in consideration of the final draft recommendation of the Shoreline Management
Program (SMP) to the Board of County Commissioners.
I believe the draft SMP is overly restrictive and imposes regulations which have no legal or moral basis in fact or
science. The Shoreline Management Act (SMA) requires the use of all science, not the "best available science" as
is used under the Growth Management Act.
The single most onerous regulation will be the implementation of buffers. Buffers are being proposed to protect
the natural function of the shoreline. However, the stated science being used to justify their implementation is the
Characterization and Inventory report prepared by ESA Adolfson (Report). This Report is not science. It is as the
name states an inventory and a written characterization of that inventory. There are several problems with using
this Report. A scientific report is written by scientists and is a peer reviewed publication. A scientific report cites
scientific studies of the area in question. At the end of the Report there are over 200 cited works. The only one of
these works that is a study of the shoreline of Jefferson County is one of the Hoh River. The Hoh River is a
considerable distance away from the shoreline of East Jefferson County and is a river not a marine shoreline, this
report is only valid for the Hoh River. This Report was prepared by viewing aerial photographs. Many of the
photographs used were not current and therefore did not correctly result in either an accurate inventory nor a
proper characterization. Imposing regulation on a varying shoreline by using out-of-date photographs is not
science.
Secondly, there has never been a proven need for implementing buffers in Jefferson County. The reason they are
being used as per the Characterization and Inventory report is that they are being used in the Jefferson County
Critical Areas Ordinance and that Whatcom County is using them in their SMP. This is hardly significant
justification to implement such onerous and overly restrictive regulations. Buffers are from a stated critical area.
Jefferson County is choosing to characterize the entire shoreline of the county as a critical area. But by using the
Report from ESA Adolfson as the sole justification on that need the county has entered into a very questionable
area. How can any group of people use aerial photographs to determine if an area is critical or not. There has
been much said about habitat in the critical area, specifically Eel Grass. The entire shoreline of Jefferson County
is not composed of Eel Grass beds. But even more to the point, there has never been any cited work that
specifically shows development on the shoreline is a long term hazard to the marine shoreline. The largest stated
issues are failing septic systems and erosion. Septic systems are regulated by the State of Washington and
according to our local septic permit office new septic systems are designed, engineered and installed to provide
protection for the environment. Failing septic systems are already covered under regulation and the property
owner can be compelled to repair or replace any system that has failed. Erosion is a function of either
construction or improper use. Construction is regulated by the building permit process with use of "Best
management practices" and frequent inspections. Erosion from improper use is already regulated by both the
federal and state governments and is provided oversight by the county and by volunteer shoreline watchers.
6/17/2009
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Without a proven demonstrated need it is not reasonable that buffers be implemented. Use of generic buffers
without a scientific study of the specific shoreline in question contradicts the stated uses allowed and promoted by
the SMA. Implementation of regulation without a proven need also can result in constitutional issues related to
"takings" , "substantive due process" and the "Nolan/Dolan nexus and proportionality tests". In addition the laws of
Washington State may be violated as generic buffers will likely be shown to be an indirect tax, fee or charge on
the property in question.
There is a concept called the "reasonable man rule". Basically what a reasonable man perceives to be is
considered valid in contrast to the view of a particular person or group. This can be applied to the draft SMP. Will
a reasonable man believe that buffers are needed on all shorelines of Jefferson County without a scientifically
demonstrated need. This is highly doubtful. Using four characterized shoreline designations of High Intensity,
Shoreline Residential, Conservancy and Natural would a reasonable man assume that High Intensity use would
need a buffer at all? Considering that the SMA states that residential is a preferred use of the shoreline would a
reasonable man assume that that designation need a buffer? It is likely that much of the SMP will fail this test.
The proposed regulation of vegetation removal and cutting is also much too restrictive. The regulation covers the
entire 200' along the shoreline. Please consider the arguments made above. Understandably a designated
geologically hazard can justify this regulation but to implement it but again the county fails to show a
demonstrated need for this.
In addition it is proposed that shell fish cultivation in front of residential property require a condition use permit.
What about the residential property owner that also owns the tidelands in front of there home. Why should they
have to get a conditional use permit to grow shellfish on there own beach. Will we next require a conditional use
permit to grow vegetable in our gardens. I believe an exemption needs to be provided for this case.
I urge the planning commission to carefuly review the draft SMP and to revise it accordingly. I see no reason why
the shoreline owners need to be regulated as proposed when it has been stated the shoreline of Jefferson County
is in good shape. In addition I do not feel that the proposed SMP will pass muster in the courts and will cost the
county more in legal costs then in any added benefit.
Sincerely,
Craig Durgan
801 Olele Point Road
Port Ludlow, WA 98365
6/1 7/2009