by Ralph Nichols

Burien’s five-member working group, which will negotiate changes to the city’s Shoreline Master Program (SMP) required by the state Department of Ecology, has now been named.

Appointed by the city council Nov. 28 Burien Marine Homeowners Association president Michael Noakes, Lake Burien Shore Club president Don Warren, City Councilman Gerald Robison, Planning Commission Chairman Jim Clingan, and at-large member Lee Moyer.

Ecology informed Burien last May that the city must amend four key provisions in its SMP, which council members adopted in September 2010. The amendments are:

• Establishing a 50-foot buffer plus an additional 15-foot setback along the developed residential marine shoreline. The city’s new SMP retains an existing 20-foot marine buffer with no additional setback.
• Limiting a shoreline homeowner’s ability to rebuild if the home is destroyed.
• Removing an outright ban on watercraft on Lake Burien in the event that the public gains access to the lake in the future.
• Imposing an additional step in obtaining a shoreline variance in geologically hazardous areas and wetland buffers.

“The Burien Marine Homeowners Association (BMHA) has advocated that Burien continue to work with [Ecology] to complete the SMP rather than waiting for [Ecology] to formally deny the submission and take over the process,” Noakes said.

“We are grateful that the city council has agreed to appoint a small working group to assist in the completion of Burien’s SMP update rather than allowing [Ecology] to issue a denial and then complete the SMP on their terms.”

Noakes also thanked Ecology “and particularly Geoff Tallent” with the Shorelines and Environmental Assistance Program of Ecology’s Northwest Division in Bellevue.

Calling the negotiations “risky and challenging given the politics among various groups, Noakes said, “We appreciate [Ecology’s] willingness to consider a slightly unconventional solution for collaborating with Burien to finalize our SMP update.”

He added that informal conversations with Ecology suggest “an increasing recognition that protection of developed Shorelines around Greater Seattle requires more flexibility than can be achieved” simply by expanding setbacks and adding new buffers.”

The 2010 Legislature changed a major guideline for shoreline management from “best available science” to “no net loss of shoreline ecological function” – a criteria that has yet to be clearly defined.

Tallent told The B-Town Blog that Ecology is “glad for the opportunity to sit down and try to work through” these issues … “I feel very hopeful that this is something we can work out.”

Ecology believes “it will be very useful and helpful for the SMP, once it’s completed, to have provisions for how existing homes in or that straddle buffer zones will be managed. That was a piece that was missing” from Burien’s revised SMP.

But, Tallent noted, needed will be a balance to offset development that maintains no net loss.

Noakes said the BMHA does “not believe there is any conflict between the requirement for no net loss and for the private property owners to be certain of their right to enjoy and maintain their existing homes.”

By defining the guideline as “No Net Loss of Ecological Function from new development,” Noakes suggested “the no net loss standard can be achieved with simple language that provides the right to maintain existing structures.

“Further we believe it is in everyone’s interest to allow for limited new development and expansion of existing structures” along the Puget Sound shoreline “by reference to a well-defined matrix of mitigation options to achieve no net loss.”

Following a 20-month process, the city council approved in September 2010 Burien’s revised and updated Shoreline Master Program (SMP), then submitted it to Ecology for review.

Ecology held a public hearing on the SMP last December, and then conditionally approved the SMP – but notified the city that four major changes would be required.

On May 23, the city council authorized Mayor Joan McGilton to submit an alternative proposal to Ecology: the city would accept all but four of the required changes.

Ecology has not responded to McGilton’s letter. However, the BMHA began quiet discussions with Ecology and on Oct. 24 presented the city council with a proposal for negotiating the four required changed with Ecology.

The working group was subsequently created by the city council to negotiate with Ecology.

Ecology's map shows the widespread contamination from the Asarco Plume.

The Washington State Department of Ecology will be holding a public meeting on Dec. 6th, as part of its comment period about a cleanup plan for the Tacoma Smelter Plume.

The free meeting, which is open to the public, will run from 6:30 p.m. – 8:30 p.m. at the Des Moines Activity Center, located at 2045 South 216th Street.

If you’re not familiar with Asarco or the Tacoma Smelter Plume, it’s a story of historic, major air pollution – over 1,000 square miles of King, Pierce, Thurston and Kitsap counties may have arsenic and lead soil contamination from this one plant in Tacoma (including the Burien area).

According to Ecology’s website:

This plan includes soil cleanup for the most contaminated areas of the plume and for play areas. It also manages risk by educating people about how to protect themselves.

Why it matters

Over 1,000 square miles of King, Pierce, Thurston, and Kitsap counties may have arsenic and lead soil contamination. You could be affected! Arsenic and lead are toxic, especially to children.

What to comment on

Our reading guide explains more about what’s in the plan and what to comment on. Ecology is offering different services, depending on where you live. You may also have specific questions if you are a parent, teacher, developer, land use planner, real estate agent, or thinking about buying or selling a home.

How to submit comments

Check the comment period webpage for where to send comments. We also list all the staff available to answer questions.

Public Meetings

All meetings run from 6:30 – 8:30 p.m.:

• Nov. 9, 2011 McMurray Middle School cafeteria, 9329 Cemetery Rd., Vashon Island
• Nov. 16, 2011 Curtis High School cafeteria, 8425 40th St. W., University Place
• Dec. 6, 2011 Des Moines Activity Center, 2045 South 216th St., Des Moines

Ecology's map shows the widespread contamination from the Asarco Plume.

The Washington State Department of Ecology will be holding a public meeting in Des Moines on Dec. 6th, as part of its comment period about a cleanup plan for the Tacoma Smelter Plume.

The meeting will run from 6:30 p.m. – 8:30 p.m. at the Des Moines Activity Center, located at 2045 South 216th Street.

If you’re not familiar with Asarco or the Tacoma Smelter Plume, it’s a story of historic, major air pollution – over 1,000 square miles of King, Pierce, Thurston and Kitsap counties may have arsenic and lead soil contamination from this one plant in Tacoma.

According to Ecology’s website:

This plan includes soil cleanup for the most contaminated areas of the plume and for play areas. It also manages risk by educating people about how to protect themselves.

Why it matters

Over 1,000 square miles of King, Pierce, Thurston, and Kitsap counties may have arsenic and lead soil contamination. You could be affected! Arsenic and lead are toxic, especially to children.

What to comment on

Our reading guide explains more about what’s in the plan and what to comment on. Ecology is offering different services, depending on where you live. You may also have specific questions if you are a parent, teacher, developer, land use planner, real estate agent, or thinking about buying or selling a home.

How to submit comments

Check the comment period webpage for where to send comments. We also list all the staff available to answer questions.

Public Meetings

All meetings run from 6:30 – 8:30 p.m.:

• Nov. 9, 2011 McMurray Middle School cafeteria, 9329 Cemetery Rd., Vashon Island
• Nov. 16, 2011 Curtis High School cafeteria, 8425 40th St. W., University Place
• Dec. 6, 2011 Des Moines Activity Center, 2045 South 216th St., Des Moines

by Ralph Nichols

A compromise agreement that could end the standoff over Burien’s Shoreline Master Program (SMP) may be in the works.

City Councilman Gordon Shaw asked at the end of the council’s Oct. 3 meeting that a Burien Marine Homeowners Association document be placed on their Oct. 24 meeting agenda.

“I have reason to believe there are some options for a win-win situation for our Shoreline Master Program process,” Shaw told the other council members.

Council members Jack Block Jr. and Gerald Robison supported his request, thus making it so.

The city council adopted an updated SMP in September 2010, which retained a 20-foot setback from the usual high water mark in developed residential areas along Puget Sound.

But the state Department of Ecology, which appeared to favor a 50-foot buffer with an additional 15-foot setback, subsequently rejected this and three provisions in the local plan.

Michael Noakes, president of the homeowners association, told The B-Town Blog after Monday’s meeting that Ecology “was ready to deny Burien’s SMP and begin the rule-making process.”

Such a rule-making process would impose on Burien an SMP preferred by Ecology.

“The BMHA does not believe this would be in Burien’s best interest,” Noakes said. So “we prepared a memo advocating that the city continue negotiating with the Department of Ecology to finish the SMP process, rather than face denial” of Burien’s plan by the agency.

Since the Burien SMP was rejected, representatives of the homeowners association “have continued unofficial discussions” with Ecology,” he continued.

“There is no compromise solution at this time, but we are working toward one. I personally believe that such a solution protects the city from a showdown and is better for Burien and the Department of Ecology than a denial.”

Noakes said the homeowners association is doing the work, not city staff, “but the city will certainly have a role” in the process.

Every city and county in Washington is required by the Legislature to update its SMP.

According to the state:

“Sample results show bacteria concentrations have dropped to background levels.

The swimming beach was previously closed on September 16, 2011 due to a sewage spill.”

For more info on area beach closures, visit http://www.ecy.wa.gov/programs/eap/beach/

by Ralph Nichols

Burien City Council members drew a line in the sand Monday night (May 9).

They won’t adopt four amendments to the updated Burien Shoreline Master Program (SMP), as requested recently by the state Department of Ecology.

The most controversial amendment wanted by Ecology would have imposed a 50-foot buffer plus an additional 15-foot setback along the developed residential marine shoreline. The city’s new SMP retained an existing 20-foot marine buffer with no additional setback.

City Manager Mike Martin said that without additional direction from council members, staff was ready “to tell Ecology that the city has received no additional information on which to base a decision so we’re sticking to our guns.”

Following a brief discussion, council members by consensus gave staff a green light. A formal response to the state agency’s proposed amendments and other changes to the local SMP will be submitted to the council for a final OK on May 23.

Burien Planning Director Scott Greenberg told council members that 37 changes requested by Ecology “are consistent with city’s policy direction” when it adopted the updated SMP last September and should be approved.

Another seven requested changes to the SMP can be accepted “with minor modifications,” he continued.

But, Greenberg said, four of the changes wanted by Ecology “are inconsistent” with city policy, and staff “recommends rejecting them.”

“I am disturbed by the Department of Ecology document,” said Councilman Gordon Shaw. “It bothers me greatly that Ecology had representatives at all three stages of our process, and yet they just go into a back room in Olympia … and stuff things down our throat….

“‘OK, you did all that but that doesn’t matter’” seems to be Ecology’s attitude toward the local SMP process,” Shaw suggested.

“Who are these people who can take this process we’ve been through and just throw it out?” said Councilman Gerald Robison. “I support staying with what’s been done already.”

Noting that she voted for a 50-foot buffer last year, Councilwoman Rose Clark said, “I’m not continuing with that [buffer]. I’m not in favor of it now.” She also expressed disappointment that Ecology failed to give the city “some recognition of our effort.”

But Mayor Joan McGilton demurred, saying she “found the work Ecology did was reasonable.” Yet “even though I agree with Ecology, I will support the city’s plan.”

The other amendments to the SMP requested by Ecology but rejected by the council would have curtailed a homeowner’s ability to rebuild if the home was destroyed, removed an outright ban on watercraft on Lake Burien if public access occurs in the future, and imposed an additional step for a shoreline variance in geologically hazardous areas and wetland buffers.

Earlier in the meeting, Three Tree Point resident Ron Franz said while “the city was pretty darned responsive to public opinion … I’m profoundly disappointed by Ecology’s response. The [width of the] buffer is just a number Ecology pulled out of a hat.”

After thanking the city for its efforts in responding to Ecology, Michael Noakes, president of the Burien Marine Homeowners Association, said he was “surprised and disappointed by Ecology’s response” to the SMP “with its focus on ‘development creep’ as the rationale for buffers.”

The agency made “a blatant attack on homeowners’ ability to rebuild their homes in the existing footprint,” Noakes added.

And while pleased that the Department of Ecology recognized the validity of a homeowners association study of Burien’s Puget Sound shoreline, “I find it curious that they ignored our findings,” he noted.

Three Tree Point resident Andy Ryan said Ecology “seems to have this unfounded fear that we [marine] homeowners want to move our homes to the water’s edge.”

Ryan also voiced disappointment with restrictions on bulkhead heights and planting non-native vegetation in the absence of scientific evidence to support them.

Every city and county in Washington is required by a 2003 legislative action to review and update their local SMPs, which were mandated by the 1972 voter-approved Shoreline Management Act, with direction and review by Ecology.

by Ralph Nichols

Last summer, when Burien City Council members were updating the local Shoreline Master Program (SMP), the state Department of Ecology never defined “no net loss of ecological function” – the legislative yardstick for many shoreline regulations.

And when Ecology recently sent that SMP back to Burien – with conditional approval provided the city makes to its plan the changes required by the state – it did so again without a working definition of “no net loss.”

The city’s next move will be discussed at tonight’s Burien City Council meeting (7 p.m., May 9; PDF of agenda here), which likely will include a new volley of comments by concerned homeowners in defense of property rights and local control.

Changes that Ecology says Burien must make to its SMP include:

• Requiring a maximum 50-foot buffer plus a 15-foot setback for new development on marine shorelines. The city approved SMP retained the existing 20-foot marine buffer with no additional setback. Ecology says a reduced buffer may be allowed in some cases if neighboring homes are closer to the shoreline.
• Removing an outright ban on watercraft on Lake Burien should public access occur in the future.
• Keeping a single-family home in “conforming” status, even if it requires a variance to expand on shoreline property.

In a draft response to Ecology’s required changes, which council members will review, city staff opposes amending these provisions of the SMP.

Staff also opposes changing language that could prohibit the rebuilding of a legally established home if it was destroyed.

No action by the city council is expected at tonight’s meeting. However, staff will be asking council members for direction.

The city can agree to the changes required by Ecology, or it can submit an alternative proposal back to Ecology. If an alternative is submitted by Burien but then denied by Ecology, the city has an option to request a restart of the review and approval process.

Every city and county in Washington is required by a 2003 legislative action to review and update their local SMPs, which were mandated by the 1972 voter-approved Shoreline Management Act, with direction and review by Ecology.

by Ralph Nichols

If there was really any question about the primary focus of state regulators as they review Burien’s updated Shoreline Master Program (SMP), it was settled at Wednesday night’s (Dec.8) public hearing.

The Department of Ecology is “having trouble embracing” the 20-foot buffer adopted by the city council for residential reaches of the Puget Sound shoreline, said Bob Fritzen of the agency’s Bellingham office.

Ecology, which reviews all SMPs after they are approved locally, conducted the public hearing. The agency will approve Burien’s SMP, send it back to the city with suggested revisions, or reject it.

Recommendations written by the city’s Shoreline Advisory Committee, which represented the first round in a two-year process to revise the Burien SMP, included a 50-foot buffer plus a 15-foot setback along the developed marine shoreline.

A majority of Burien Planning Commission members agreed with the controversial proposal to expand the buffer – strongly opposed by marine homeowners – and kept it in the draft submitted to the city council in March.

But council members voted 4-3 in August against accepting the 50-foot buffer/15-foot setback, electing instead to adopt as a buffer the current 20-foot setback from the ordinary high water mark.

Fritzen, who questioned why the city council rejected the expanded buffer and settled on a 20-foot distance, said “we need more information … obviously we do have concerns about smaller buffers….”

Asked if Ecology has “hard evidence that a 50-foot buffer is better,” he replied that Ecology has “a lot of discussion on the record … that right or wrong [the buffer] ended up at 20 feet…. There’s no supporting evidence for 20 feet.”

He was then asked, “So there is no evidence to support 50 feet?” Fritzen shot back, “That’s not my answer. You heard my answer.”

A primary function of the local environmental regulations, mandated by Washington’s Shoreline Management Act of 1972, is the prevention of net loss of shoreline ecological functions. Yet “no net loss” has no clear working definition.

Fritzen stated that environmental protection is the “most important” criteria in determining shoreline development issues.

Ecology’s Geoff Talent observed, however, that protection of property rights is also a key factor in the regulatory equation that balances public interest and no net loss.

Following the hearing, Burien Mayor Joan McGilton told The B-Town Blog, “It’s in the hands of Ecology now. I hope they make the right decision.”

McGilton, an environmental engineer, didn’t elaborate on what a “right decision” may be. However, she voted with the minority to keep the 50-foot buffer/15-foot setback when the council opted for 20 feet last summer.

Michael Noakes, president of the Burien Marine Homeowners Association, told The B-Town Blog, “We are grateful for the willingness that the Department of Ecology has demonstrated to enter into a dialog with Burien’s residents and ensure a thoughtful and transparent review process.

“We hope that the Department of Ecology will appreciate the recent work that has been performed by the BMHA to add detail and clarity to the evaluation of existing conditions in Burien’s marine shoreline.”

He noted “this work adds further support to the correctness of the city council’s judgment that a 20-foot buffer and 150-foot vegetation conservation area are sufficient to achieve no-net loss given the fully developed nature our marine shoreline.”

That work is a new report – a detailed setback evaluation of the Burien marine shoreline – which, Noakes said, “will verify no net loss while providing homeowner protection” when submitting it for the record during the public hearing.

“Wider buffers do not improve the environment and increase the burden on homeowners. The importance of existing conditions shows why state law puts cities in charge of local SMAs,” testified Tadas Kisielius.

An attorney representing the BMHA, Kisielius said the existing buffer and conforming uses provide “a balance that gives the ecological protection you’re looking for.”

There are no regulations or case law defining no net loss, so a judge would have to turn to a dictionary for a definition, said Ron Franz, a shoreline resident and an attorney.

The definition the judge would find is “don’t make things worse,” Franz added. “The 20-foot buffer does not make things worse … it passes the legislative standard.”

Some marine shoreline homeowners also asked Ecology for greater flexibility in repairing and rebuilding bulkheads that protect their property from wave erosion – a need they said was clearly evidenced by last month’s windstorm.

by Ralph Nichols

It didn’t take long for homeowners along Burien’s marine shoreline to have their concerns confirmed at a Dec. 8 public hearing by the Department of Ecology on the city’s recently updated Shoreline Master Program (SMP).

Ecology is “having trouble embracing” the 20-foot buffer adopted by the city council for the developed residential reaches along Burien’s Puget Sound waterfront, said Bob Fritzen of the agency’s Bellingham office.

“Obviously we do have concerns” and more information is needed about why the council retained the current 20-foot buffer in its revised SMP, Fritzen said.

Ecology wants more documentation explaining why council members reduced a proposed 50-foot buffer back to the existing 20 feet, and also rejected a proposed additional 15-foot setback.

During public testimony, Michael Noakes, president of the Burien Marine Homeowners Association, summarized a detailed new report – a setback evaluation of the marine shoreline – which he described as a “painstaking review of all 291 shoreline residential properties.”

This study “will verify no net loss while providing homeowner protection,” Noakes testified. No net loss of shoreline ecological function is the standard the Legislature requires for establishing shoreline regulations.

All Puget Sound waterfront homeowners speaking at the hearing urged Ecology to recognize the unique circumstances of this developed shoreline and to retain the 20-foot buffer adopted by the city council.

Lake Burien homeowners called for changes in the document to increase protection of the fragile ecology of the lake and adjacent wetlands, at to insure no net loss in the future.

A full report on this public hearing will be posted on the B-Town Blog sometime Thursday afternoon (Dec. 9), so be sure to check back then.

by Ralph Nichols

Burien waterfront homeowners could hear for the first time at a public hearing at 6:30 p.m. tonight (Wednesday, Dec. what state regulators think about the city’s recently updated Shoreline Master Program (SMP).

The Department of Ecology, which reviews local shoreline plans to determine if they comply with state guidelines, will conduct the hearing on the SMP approved by the Burien City Council on Sept. 27.

More than 260 cities and counties statewide must update their local SMPs by 2014. To date, only about 30 revised plans have been completed, then reviewed and approved by Ecology.

Washington’s 1972 Shoreline Management Act requires that each city and county with “shorelines of the state” have an SMP tailored to specific local geographic, economic and environmental needs – based on state laws and regulations.

Burien received a $117,000 grant from Ecology to fund consultant services and staff time involved in the lengthy process of updating its SMP.

The city’s Shoreline Advisory Committee met nine times before sending proposed revisions to the Burien Planning Commission last January. Following a three-month review, the Planning Commission submitted its recommendations to the city council.

Council members adopted the new SMP on a 6-1 vote and it was submitted to the state’s environmental department.

Ecology reviews each local SMP to determine if the document complies with state requirements. The agency has sole authority to approve a local SMP as submitted, approve it with changes requested by state regulators, or reject it.

Only after Ecology approves a local SMP does it become part of the statewide shoreline “master” program.

Waterfront homeowners, especially those along Puget Sound, expressed concern about what Ecology might do immediately after city council members adopted the local plan – perhaps with good cause.

For example:

Earlier this fall, Ecology approved Des Moines’ updated SMP – only after that city submitted its third revision, which was written with the assistance of an agency staff member.

And both the city of Sammamish and Jefferson County have been required to complete detailed responsiveness summaries for Ecology detailing “issues raised by state-wide public comments” received on the local SMPs.

In addition, environmental organizations with specific agendas that don’t include private property rights – which the Burien Marine Homeowners Association organized to protect – have already intervened in some local SMP processes.

A major point of controversy in the development of Burien’s revised SMP was a proposed change to buffers along the developed Puget Sound residential waterfront.

Submitted to by the planning commission to the city council, it would have expanded the existing 20-foot setback from the ordinary Puget Sound high-water mark to a 50-foot buffer plus an additional 15-foot buffer for any new development.

However, council members rejected the expanded buffer when they voted 4-3 in mid-August to retain the 20-foot setback. The expanded buffer does apply to non-residential areas on the marine shoreline – primarily along Seahurst Park.

Repair and replacement of bulkheads and shoreline vegetation were also points of controversy during the final weeks of council review, but citizens, city staff and council members reached a marginal agreement.

Marine shoreline homeowners are expected to cite at today’s public hearing the damage to bulkheads and nearby property caused by the Nov. 22-23 storm, and ask for an easing of restrictions on these structures.

Plaguing the SMP revision process until earlier this year was a requirement that shoreline management be based on the “best available science.”

Responding to difficulty in applying this nebulous standard – the criteria required by the state’s Growth Management Act for regulating critical areas – the 2010 Legislature changed the criteria for shorelines to “no net loss of ecological function.”

The determination of when “net loss” is calculated – at the time a new SMP is adopted or retroactively to when development first altered a shoreline – was a question council members wrestled with.

In the end, they accepted with some dissent the principle that any net loss of shoreline ecological function will be based on future impacts of waterfront development.

Citizens who don’t speak at this public hearing but want to voice their opinions may submit written comment to Ecology before 5 p.m. Dec. 17.

Send comments to:

Bob Fritzen
WA Department of Ecolog
1440 10th St., Suite 102
Bellingham, WA  98225

Email: bob.fritzen@ecy.wa.gov