Washington State Shoreline Master Program Issue Overview
In 2017 and 2018 Chelan County (County) went through a process to update its Shoreline Master Program. NCWAS submitted written comments to both the County and Department of Ecology (Ecology) arguing for provisions that would fully protect the public interest in the County’s shorelines and natural water systems. Ultimately, Ecology approved an update that reduced shoreline buffers by approximately 50% throughout the County and redesignated lands adjacent to Lake Wenatchee and Fish Lake that reduced protections there in particular. The changes went into effect in 2019.
In 2021, Chelan County went through a “Minor SMP Update Process”. NCWAS participated and, in doing so, found that the County’s 2019 buffer changes violated several provisions of applicable state law. We asked the County to, as part of its 2021 update process, revisit its previous buffer decisions. It refused.
After much back and forth with the County to no avail, we sent a letter to Ecology taking issue with its failure to comply with applicable state law when conducting its oversight responsibilities for county SMP updates. This led to a meeting between us and Ecology SMP staff. We came away from that meeting unsure that the agency would reform its practice of approving noncompliant county SMP updates. As a result, we took the matter up with the Governor’s Office. Over the following 2 months, it discussed the issue with Ecology. We then met again with Ecology SMP staff. In the end, Ecology was unable to defend its noncompliant practices, but also offered no assurance it would comply with applicable laws going forward.
After 6 years of work, the issue remains unresolved. A final option for pressing our case would be to file a lawsuit, but doing so would take years to play out and be very costly. One would think a state agency would respond more proactively and positively when presented with irrefutable evidence of its failure to perform its duties as required by law. This has, unfortunately, not been our experience with it on this issue.
Ecology has now launched a new SMP rule-making process. We plan to participate and insist that any new set of rules protects the public interest. Ultimately, SMP rules must fully protect our natural water systems.
It’s interesting that what began as a simple effort to provide input to a local process, revealed structural wrongdoing by a Washington State agency which has since refused correct the situation. Below is a more thorough description of our work on this issue and links to several letters we’ve submitted in the process.
Our 6 years of work on this issue:
In 2017 and 2018, NCWAS was involved in Chelan County’s Shoreline Master Program (SMP) Update Process and expressed concerns regarding several of its proposed changes. We submitted 2 comment letters to the process, arguing for wider shoreline buffers than those being proposed and against the less protective ones being considered for Lake Wenatchee and Fish Lake in particular. Ultimately, revisions that weakened protections for the County’s natural water systems were adopted and went into effect in 2019.
To be specific, the Chelan County SMP as revised, reduced the mandated widths of buffers along lakes and streams throughout the County and changed buffer designations for shorelines at Lake Wenatchee and Fish Lake that offer reduced protection. The overall result was significantly reduced protections for the County’s natural water systems.
In early 2021, Chelan County again considered updates to the program. During the 2017/2018 SMP update process, we assumed the County had exercised its discretion within the boundaries of applicable law. However, as we worked to address the 2021 update process, we came to understand that the reductions in buffer widths and changed designations adjacent to Lake Wenatchee and Fish Lake that the County made in 2018 did not comply with applicable SMP law.
We twice submitted comments to the 2021 process with the hope of securing stronger protections for the county’s shorelines than the regulations approved in 2019 provide. The first, dated April 12 (click here to read it), laid out in detail how we believe the county’s current SMP buffer widths and specific designation changes made at Fish Lake and Lake Wenatchee, are inconsistent with applicable Washington State law. On May 26, we submitted a second comment letter (click here to read it). Both expressed our concerns in detail and asked the County to revisit the matter and correct the errors it made in 2018. Our requests were denied.
With our efforts on the issue having been unsuccessful, in February 2022 we petitioned the County, again asking it to revisit the matter and revise its SMP to bring it into compliance with state law. Our petition (click here to read it), $1,520 fee, and an additional document responding to questions the County asked us to answer (click here to read it), were initially accepted. Approximately 5 months later, the County returned our fee and informed us that it would not process our petition.
This left us with nowhere left to turn to resolve the matter with Chelan County. However, updates of county SMP’s are 2-step processes. A county submits its proposed changes to Ecology, which then reviews them to make sure they comply with applicable state law. In this case, Ecology approved Chelan County’s 2018 SMP update in spite of the fact that it contained provisions that were clearly out of step with the law. As a next step, we sent it a letter to DOE challenging its statewide SMP oversight practices (read it here), and in early November 2023 we met with its Shoreline Management Policy Lead.
While it was a good discussion, we remained unsure the department would make meaningful changes to its SMP oversight practices going forward. As a result, we sent a letter (read it here) to Governor Inslee and then met with his Senior Advisor for Water and Environment. She, subsequently, met twice with Ecology which, after conferring with the Attorney General’s Office, met with us a final time to discuss further. In the end, the department was unable to counter any of the points our letter raised, but it also offered no assurance of bringing its practices into compliance with current SMP law.
The department also mentioned that it plans to begin a new rulemaking process in the near future to consider options for revising its SMP oversight policies. We intend to participate.
Closing the Issue with the Governor’s Office
With the Governor’s Office having chosen not to compel Ecology to bring its SMP practices into compliance with state law, the only remaining option for us would be to file a lawsuit. Because doing so would take years to play out and be very costly, we sent the following email to the Governor’s Office:
Art and I would like to thank you for taking our concerns about Ecology’s SMP policies up with the department and arranging for a follow up meeting between the department and us. That meeting took place on June 25th.In addition to Art and me, it was attended by several Ecology staff people. Unfortunately, from our perspective, nothing meaningful was achieved. Even though staff were unable to refute anything contained in our letter, the department made no admission of fault either.
In your email to us below, you mentioned that you had an opportunity to hear Ecology’s “perspective” on the matter. It does have a perspective on it, but unfortunately it’s one that we feel is inconsistent with current law. During the meeting, the department indicated that it’s been operating under a strategy that considers multiple factors in arriving at buffer width decisions. We don’t believe this is consistent with the reliance on best available science as required by law and, as a result, almost certainly fails to meet the “no net loss” mandate.
Our disappointment with Ecology’s response to our concerns goes beyond the question of rectifying errant past SMP decisions it’s made. We see the issue as being also about responsible and responsive government. Because Ecology has a duty to conduct its business in ways that are consistent with relevant laws, it should respond positively when inconsistencies are brought to its attention. Throughout this process, this is not what we’ve experienced with the department.
We’ve been trying to resolve this matter for over 6 years. Unfortunately, we continue to believe that the department’s approach to SMP buffer decisions is inconsistent with applicable law and has compromised the public’s interest in the protection the Washington’s natural water systems.
We understand that Ecology is starting a rulemaking process to amend several WAC chapters under the Shoreline Management Act. Ecology indicates on its website that a portion of the revisions are intended to “provide clarity around SMP approval/amendment procedures and permit and enforcement procedures”. We intend to participate in the rulemaking process with the hope that the rule amendments address the issues we’ve described in our letter and conversations with Ecology.
Thanks again for your help with this. Our disagreement in this matter is with the Department of Ecology, not your office.
Mark