In 1995, the Washington legislature passed a law ordering the Department of Ecology (DOE) to revamp its 1972 shoreline management rules. The legislature would have been well served to remember the old saying “be careful what you wish for, you just might get it.” By putting the vague notion of the “public interest,” ahead of the fundamental principle of individual property rights, DOE has constructed a regulatory nightmare.
The new “Shoreline Master Program Guidelines,” released in November 2000, have spawned widespread alarm and confusion. One of the greatest fears is that the guidelines mandate 200-foot setbacks from most rivers, lakes, streams, and coastlines. Strictly speaking, this is not true. What the new rules actually contain is far worse.
For starters, calculating how much land will be governed by the new guidelines is not as simple as walking down to the edge of a stream or lake near your property and measuring back 200 feet. At a minimum, the 200-foot measurement begins from the what is called the “ordinary high water mark.” A river, for example, may experience high flows from time to time and become 50 feet wider than usual. The outer edge of this 50-foot area is considered the ordinary high water mark. In this case, the new regulations would apply 250 feet from what a layman would consider the shoreline.
A more expansive measurement starts from the edge of the floodway – meaning areas that are normally dry but might be underwater for short periods of time every few years or so. As an example, the floodway might extend 100 feet from the water’s edge, meaning the regulations would govern land use a full 300 feet from the shoreline.
Even this measurement may not be far enough. The guidelines might also apply to the entire 100-year floodplain – land that may be covered with water only once in a 100 years. Thus, a farmer whose property extends many hundreds of feet from a body of water could find that all of his land, not just the 200 feet directly next to the water, is governed by the new regulations.
Once it is determined (read guessed) how much land is subject to the new guidelines, the real fun starts. Property owners seeking to put an addition onto a house, build an ordinary dock, or clear unwanted plants and weeds from their yards will find themselves in a regulatory nightmare. Anyone wishing to protect a home from erosion must complete costly and complex studies proving to DOE’s satisfaction that a threat exists. The fact that your home may be sliding into the sea, according to DOE, “is not a demonstration of need” for such protection.
Property owners near water bodies harboring allegedly endangered or threatened species face even greater burdens. There are mandates for vegetative buffer zones equal in length to the height of any tree that may have ever grown along these shorelines – and 60-foot buffer zones in areas where trees have never grown at all.
With more foresight than most regulatory agencies, DOE realized that these draconian regulations might be unpopular. To pacify critics, director Tom Fitzsimmons announced that the new guidelines “will not apply to existing homes, businesses or farming practices.” Some might have thought these soothing words meant that land uses predating the issuance of the rules would be protected.
However, DOE’s legal analysis of the Shoreline Management Act strips away such assurances. According to the analysis, land uses predating the new guidelines are “disfavored under the law and public policy encourages the restriction of them so that they may ultimately be phased out.”
Put simply, no property owner and no property use is safe.
As another means of quieting opposition, DOE produced two sets of guidelines from which local governments can choose – one that appears to offer broad flexibility and another containing specific regulatory mandates. In reality, there is little choice because the “flexible” option is so complex that most local governments possess neither the technical expertise nor the financial resources to take this approach.
The legislature now has an opportunity to fix the mess it created back in 1995. HB 1374 would scrap DOE’s new rules altogether and reinstate the previous guidelines. While few would argue that those rules were perfect, they are certainly preferable to the wholesale usurpation of fundamental freedoms now underway.