Shoreline Mgmt. Plan

MITIGATION NO NET LOSS Comment SMP Draft Update

Comment on the SMP Draft Update

Pearl Rains Hewett Trustee

George C. Rains Sr. Estate

Member SMP Committee

 Posted 12/1/2012

(Comment – Notice all the “shalls”… Ed.)

4.4 Mitigation and No Net Loss

 Compensatory mitigation plans shall be prepared by qualified professionals with education, training and experience in the applicable field:

 

4.4.3 Regulations – General Mitigation Requirements

1. Proponents of new shoreline use and development, including preferred uses and uses that are exempt from permit requirements, shall employ all reasonable measures to mitigate adverse impacts on shoreline functions and processes.

 

 Impacts can be mitigated if mitigation measures would not result in an extraordinary hardship and denial of reasonable use of the property.

  Continue reading

Questions raised to Ecology about scientific basis for shoreline “protection”

Posted 7/11/2012

by Pearl Rains Hewett

I submit  this as my SMP comment

With questions directed to

Clallam County DOE Shoreline Specialist Jefferee Stewart

Pearl Rains Hewett Trustee

George C. Rains Estate

Member SMP Advisory Committee

This email is my legal WRITTEN request for WRITTEN answers to my questions from DOE Jeffree Steward and/or, Paula Ehlers and/or Gordon White.

DOE represesentatives have consistently ignored written questions, on WRIA 17-19 SHORELINE INVENTORY AND CHARACTERISTICS REPORT, and The Clallam County SMP Update, asked and requested on the SMP public  comment section on the Clallam County SMP Update wesite.

Jeffree Stewart informed me yesterday 7/10/12 (in front of Steve Gray) that if I want answers to  questions I would have to send him a letter of request. Emails are a legal form of communication.

My other option is DEPARTMENT OF ECOLOGY REQUEST FOR PUBLIC RECORD  I have the form filled out and ready to email.

I am requesting answers to the following questions to comply with the core principles of Due Process.

DOE SMP taking of private property in Clallam County. Continue reading

DOE SMP PUBLIC SMP COMMENTS FROM 5/31/11 #100 TO 7/02/12 #284

TO WHOM IT MAY CONCERN

A COMPLETE LIST OF CLALLAM COUNTY DOE SMP COMMENTS 2010-2012

Available on Clallam County SMP website.

http://www.clallam.net/realestate/html/shoreline_management.htm

All public comments are subject to Public Disclosure.

I will complete the comments on #1 to #99 and document the pros and cons.

Pearl Rains Hewett

July:
·    070212 – RKonopaski – G
·    #284 clarifying the setbacks on marine shorelines?
June:
·    062312 – ESpees – G
·    175-150 + 10 foot setbacks
·    061712 – PHewett – G
·    DOE private meeting
·    061412 – PHewett – G
·    Futurewise and Grays Harbor
·    061412 – PHewett – SED Continue reading

What is the economic future of Clallam County?

This is my comment on the Clallam County DOE SMP [Washington State Department of Ecology, Shoreline Management Plan] Update

As Pearl Rains Hewett Trustee of the George C. Rains Sr. Estate
“A Continuing Family Run Business”

 

WHAT IS THE ECONOMIC FUTURE OF CLALLAM COUNTY?

The Rains Family has lived in Clallam County for over 90 years.

The private property in the Rains Sr. Trust has been owned and managed
by the Rains family for over 60 years.

The Rains Sr. Trust Clallam County marine and freshwater property, is
described in the DOE SMP Inventory and Characteristic report, as
nearly pristine, it is not contaminated or impaired.

The Rains Sr. Estate includes all trust properties in Clallam County
and is a (IRS) documented, continuing second generation Family Run
Business. Continue reading

Comments on SMP meeting of Nov. 15, 2011

My short form translation of 11/15/11 SMP meeting

The topic of DUE Process of Law and DOE’S page 88 of the Public Trust Doctrine creating law was about the last topic of discussion.
My comment, “I have serious issues with page 88.”
We will be given an opportunity for an hour long discussion with an attorney (of their choice) about this issue.
The Committee is smaller?

Recap of the Nov. 15th, 2011 SMP meeting


as reported by Pearl Rains-Hewitt, member of the Committee

The topic of DUE Process of Law and DOE’S page 88 of the Public Trust Doctrine creating law was about the last topic of discussion.

My comment, “I have serious issues with page 88.”
We will be given an opportunity for an hour long discussion with an attorney (of their choice) about this issue.
The Committee is smaller?
Harry Bell, Jay Pedersen, Karl Spees and I were vocally defending, objecting, enlightening, informing,recommending, suggesting and arguing private property, constitutional rights, scientific procedures and the Shoreline Environmental Designations (SED’S).
Jay Petersen’s public comment on the SED’S was copied and given to us. (Not posted on line?)
He made 4 good points.
1. Prohibited, he prefers conditional use
2. No SED’S on the west end?
3. He supports the existing 35 foot buffer on Lake Sutherland
4. What is exempt should be discussed.
Harry Bell’s made comments about using practical visual and technological judgment on critical areas, slopes and flood plains as done successfully by the logging industry for the last 20 years. (as any reasonable person would)
Questions and comments about the bloated size of DOE flood plains.
Comments from a tribal representative on private property regulations (they are not affected by the SMP)
Someone demanding regulation on Three Crabs private property lots. (that may be considered illegal, unconstitutional or a taking, by WA State Law.)
With regard to the protection of single family residence, the words “Imminent Danger” will be stricken from the Clallam County SMP per Margaret Clancy.
Conspicuous in it’s absence, no mention of the taking of private property for public access.
NO NET LOSS was the a low item on the agenda. (not discussed)
Jim Kramer implied that my SMP comments are/were “What I think” (as opposed to what I document). We argued about what is RULE and what is LAW.
I will keep you informed as to the time and date, so anyone who is interested, and would like to attend the following DOE rationalization meeting may do so.
The topic of DUE Process Law and DOE’S page 88 of the Public Trust Doctrine creating law.
My comment, “I have serious issues with page 88.”
We will be given an opportunity for an hour long discussion with an attorney (of their choice) about this issue. Since Jim Kramer is not an EXPERT on this.
Pearl Rains Hewett Trustee
George C. Rains Sr. Estate
Member SMP Advisory Committee

EXCLUDED SMP DOE WAC’S DO NOT BECOME LAW

Letter addressed to Sheila Roark-Miller, elected Director of the Department of Community Development:

 

This is very important with regard to the Clallam County SMP Update.

 

This ison the DOE Public Trust Doctrine web site (88 pages)
Finally, SMPs, unlike other comprehensive plans,

are adopted as WAC’S and become part of the state’s Shoreline Master Program.

As such, all local SMP rules, regulations, designations and guidelines

BECOME STATE LAW AND ARE ENFORCEABLE.
in this manner, protection of public trust resources and uses becomes binding.

 

If an SMP DOE WAC is excluded from the SMP UPDATE

IT DOES NOT BECOME LAW.

If an SMP DOE WAC is not written into the SMP UPDATE

IT DOES NOT BECOME LAW.

 

It is within your power,  as our elected official, to EXCLUDE/REMOVE WAC’S from the Clallam County SMP update.

 

I resent the fact that this is vital SMP information is HIDDEN on page 88 of the DOE Public Trust Doctrine website.

 

Pearl Rains Hewett Trustee

George C. Rains Sr. Estate

Member SMP Advisory Committee

 

SMP and WA STATE SUPREME COURT

My comment on the SMP Update

by Pearl Rains Hewett Trustee

George C. Rains Sr. Estate

Member SMP Advisory Committee

This is how Judge Johnson Washington State Supreme Court explains the role of local government in the SMP.

(Taken out of context)

The Supreme Court explained that even though there is significant local government involvement in the creation of SMPs, the process is done in the shadow of the Department of Ecology’s (DOE) control.

Involvement of local jurisdiction in the SMP process is merely a benevolent gesture by the state.

Court confirmed that Whatcom County’s SMP was not the product of local government,

Read on if you are interested. Continue reading

NO NET LOSS of Shoreline Ecological Functions IS NOT A LAW

TO WHOM IT MAY CONCERN

I submit this as my comment on NNL

Pearl Rains Hewett Trustee

George C. Rains Sr. Estate

Member SMP Advisory Committee

NO NET LOSS of Shoreline Ecological Functions IS NOT A LAW 

FOUND ON PAGE (1)  AND PAGE (47) OF A 48 PAGE REPORT AND

KEEPING IN MIND THAT WAC’s ARE NOT LAWS

SMP HANDBOOK Chapter 4

The SMP Guidelines, adopted in 2003, constitute the first actual rule (WAC) in Washington State to incorporate the

 no net loss requirement. The concept of no net loss in this State originated with earlier efforts to protect wetlands. In 1989, Governor Booth Gardner signed an Executive Order establishing a statewide goal regarding wetlands protection. “It is the interim goal…to achieve no overall net loss in acreage and function of Washington’s remaining wetlands base. It is further the long-term goal to increase the quantity and quality of Washington’s wetlands resource base.” (E.O. 89-10).

Read on if you are interested

SMP NNL Handbook Last updated 6/22/2010

8.

Specific Shoreline Activity and Use Standards Numerous additional specific references exist in the SMP Guidelines, requiring SMP regulations resulting in no net loss of shoreline ecological functions. Specific shoreline activity standards referencing NNL are located at: WAC 173-26-221(2)(c)(ii)(C) and (D): Geologically hazardous areas. WAC 173-26-221(2)(c)(iii)(C): Critical saltwater habitats

WAC 173-26-221(2)(c)(iv)(C): Critical freshwater habitats

WAC 173-26-221(3): Flood hazard reduction

WAC 173-26-221(4)(d): Public access

WAC 173-26-221(5): Shoreline vegetation conservation

WAC 173-26-221(6): Water quality, storm water and nonpoint pollution

WAC 173-26-231: Shoreline modifications, including shoreline stabilization, piers and docks, fill, breakwaters, jetties, groins and weirs, beach and dunes management, dredging and dredge material disposal, shoreline habitat and natural systems-enhancement projects.

Specific shoreline use standards referencing NNL are located at:

WAC 173-26-241(2)(a)(iv), addressing the following uses:

Agriculture

Aquaculture

Boating facilities

Commercial development

Forest practices

Industry

In-stream structural uses

Mining

Recreational development

Residential development

 

Transportation and parking

Utilities

 

WACs, “Guidelines” and “Rules” are “not” laws

TO WHOM IT MAY CONCERN

I submit this as my comment on the

Clallam County SMP

Pearl Rains Hewett Trustee

George C. Rains Sr. Estate

SMP Advisory Committee Member

Clallam County SMP – The Federal Public Trust Doctrine

Futurewise a special interest group

Washington State Administrative Code (WAC)

Regulations of executive branch agencies are issued by authority of statutes. Like legislation and the Constitution, regulations are a source of primary law in Washington State. The WAC codifies the regulations and arranges them by subject or agency. The online version of the WAC is updated twice a month. Copies of the WAC as they existed each year since 2004 are available in the WAC archive.

 

WAC’S ARE NOT LAW’S?

Guidelines Are Not Law’s?

Rules Are Not Law’s?

 

Our Elected County Officials take an oath to uphold WA State Laws not WAC’S.

 

Per FUTUREWISE these are not laws

Restoration and mitigation WAC 173-26-186(8) (c)

Restoration plan goal WAC 173-26-201(2) (f)

Recommended Shoreline stabilization WAC 173-26-231 (3) (a)

Recommendations for shore side uses and structures WAC 173-26-221 (4)

 

Public Access

A primary objective of SMA Policy

A primary Objective is not law?

Public use and access to the waters of the state is one of the requirements of

the Public Trust Doctrine Includes specific requirements in

 WAC 173-26-221(4)– Most developments are required to provide public access

• Not single-family home construction

• Not subdivisions of four or fewer lots

 

[Statutory Authority: RCW 90.58.120, 90.58.200, 90.58.060 and 43.21A.681. 11-05-064 (Order 10-07), § 173-26-201, filed 2/11/11, effective 3/14/11. Statutory Authority: RCW 90.58.060 and 90.58.200. 04-01-117 (Order 03-02), § 173-26-201, filed 12/17/03, effective 1/17/04.]

WAC 173-26-171 Authority, Purpose and Effects of Guidelines.

(1) Authority.

 

 Guidelines Are Not Law’s?

 RCW 90.58.090 authorizes and directs the department to adopt “guidelines consistent with RCW 90.58.020, containing the elements specified in RCW 90.58.100″ for development of local master programs for regulation of the uses of “shorelines” and “shorelines of statewide significance.”

 

Rules Are Not Law’s?

RCW 90.58.200 authorizes the department and local governments “to adopt such rules as are necessary and appropriate to carry out the provisions of” the Shoreline Management Act.

 (2) Purpose.

The general purpose of the guidelines is to implement the “cooperative program of shoreline management between local government and the state.”

Local government shall have the primary responsibility for initiating the planning required by the Shoreline Management Act

 and “administering the regulatory program consistent with the policy and provisions” of the Act.

[T]he department shall act primarily in a supportive and review capacity with an emphasis on providing assistance to local government and insuring compliance with the policy and provisions” of the Act. RCW 90.58.050.

In keeping with the relationship between state and local governments prescribed by the Act, the guidelines have three specific purposes: to assist local governments in developing master programs; to serve as standards for the regulation of shoreline development in the absence of a master program along with the policy and provisions of the Act and, to be used along with the policy of RCW 90.58.020, as criteria for state review of local master programs under RCW 90.58.090.

(3) Effect.

(a) The guidelines are guiding parameters, standards, and review criteria for local master programs. The guidelines allow local governments substantial discretion to adopt master programs reflecting local circumstances and other local regulatory and non-regulatory programs related to the policy goals of shoreline management as provided in the policy statements of RCW 90.58.020, WAC 173-26-176 and WAC 173-26-181. The policy of RCW 90.58.020 and these guidelines constitute standards and criteria to be used by the department in reviewing the adoption and amendment of local master programs under RCW 90.58.090 and by the growth management hearings board and shorelines hearings board adjudicating appeals of department decisions to approve, reject, or modify proposed master programs and amendments under RCW 90.58.190.

(b) Under RCW 90.58.340, the guidelines, along with the policy of the Act and the master programs, also shall be standards of review and criteria to be used by state agencies, counties, and public and municipal corporations in determining whether the use of lands under their respective jurisdictions adjacent to the shorelines of the state are subject to planning policies consistent with the policies and regulations applicable to shorelines of the state.

 

 

(A) Comply with state and federal laws and implementing rules applicable to shorelines of the state within the local government jurisdiction;

Rules Are Not Law’s?

The Public Trust Doctrine and Coastal Zone Management in Washington State

The Shoreline Management Act which requires a combination of state and local planning, is an example.

The SMA clearly states the need for comprehensive planning to allow multiple uses of the state’s shorelines while protecting the public interest. Such planning is essential to the creation of local shoreline master programs (SMP) which implement the plans.

In general SMPs regulate use in, on, or over shorelines. This feature appears in zoning classifications including natural, conservation, rural, and urban which specify appropriate, conditional, and prohibited uses for each environment. SMPs may also incorporate any other element deemed appropriate or necessary to effectuate the policy of the SMA. This clause is an open invitation for local SMPs to incorporate explicitly public trust doctrine principles.

I find this hard to believe? I would like Sheila Miller to clarify this?

It is on the DOE Public Trust Doctrine web site (88 pages)

Finally, SMPs, unlike other comprehensive plans, are adopted as WAC’S and become part of the state’s Shoreline Master Program.  As such, all local SMP rules, regulations, designations and guidelines become state law and are enforceable.  In this manner, protection of public trust resources and uses becomes binding.