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Clallam Critical Areas Ordinance appeal denied

Agricultural land uses in effect before the issuance of Clallam County’s Critical Areas Ordinance may not see the exemptions they currently do.

The ordinance, adopted in 1999, protects environmentally sensitive areas, such as fish-bearing streams, from land uses on nearby properties. It included an exemption for existing agricultural uses, instead mandating the state-law-certified agricultural land users to use what are called best management practices.

Protect the Peninsula’s Future and the Washington Environmental Council, both environmental groups, challenged the ordinance, stating the county failed to raise the issue of whether the state’s Growth Management Act, which mandated the ordinance, requires regulation of pre-existing uses.

The issue went before several courts, including the state Court of Appeals, which sided with the county on some issues but required it to take a better look at how it exempted pre-existing agricultural land uses. On July 9, the state Supreme Court refused to review Clallam County’s request to set aside the appellant court decision.

“The county went through a lot of work to get within compliance with that code, which we have, other than the one remaining issue of pre-existing agricultural land uses,” said Steve Gray, county planning manager.

The county’s stance was the state law was designed to control the negative effects of future growth and development, rather than pre-existing activities.

Protect the Peninsula’s Future corresponding secretary Eloise Kailin said the organization supports ongoing agriculture in the county, but that it needs to be done in balance with supporting the natural environment, especially fish-bearing streams.

She indicated the county’s interpretation would undermine the law’s goal of protecting critical areas.

“Had (Protect the Peninsula’s Future) not appealed, the (Western Washington) Growth Management Hearings Board would have had no authority to protect critical areas from new activities associated with ongoing agriculture,” she said.

The Court of Appeals decision basically gives the board the power to ask counties to have critical areas ordinance mandates apply to land activities in place before the ordinance’s adoption.

Gray said the county is beginning to research what it can do in response to the high court’s decision. He indicated further action to amend the ordinance must be delayed due to a Washington state Legislature study being conducted on the subject.

“Another thing hangs over this as well,” Gray said. “A study by the Legislature pretty much has local jurisdictions on hold in regard to these ordinances through 2010.”

In 2007, the Legislature passed SSB 5248 directing the Ruckelshaus Center to examine conflicts between agricultural and critical areas ordinances. The amendment creates a temporary delay on new critical area ordinance provisions while researchers develop recommendations.

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