The Bainbridge Island City Council will be asked tonight to extend a moratorium on docks, piers and bulkheads, while the planning staff completes its review of the city’s shoreline regulations.
And it won’t be the last such request. While moratorium extensions must be renewed every six months, the planning staff doesn’t expect to complete its shoreline program until late 2003 or early 2004, so it anticipates seeking at least two additional extensions.
“There may be some regulations different from what we have now,” said long-range planner Libby Hudson. “The anticipation of things changing can generate more activity, so we asked for a moratorium.”
The council enacted the moratorium a year ago, and the city has been sued over the issue, in a case brought by the Kitsap Home Builders’ Association, among others.
“We think moratoriums are designed for emergencies, and we don’t believe it is appropriate for the city to call the present situation an emergency,” said Art Castle, executive director of the KHBA.
While the case remains pending, the city’s legal position may have been significantly weakened by a recent legal development.
The findings of fact that the City Council will be asked to adopt – a legal requirement when a moratorium is extended – note that the National Marine Fisheries Service has designated all areas of Puget Sound that can be reached by chinook salmon as “critical habitat” under a provision of the code of federal regulations.
But under a consent decree signed last April to settle a federal lawsuit brought by KHBA, among others, the federal agency agreed to withdraw the critical-habitat regulation that the city cites and any habitat designations made under that authority.
“It seems appropriate to protect what’s left of our salmon habitat,” said council chair Michael Pollock, a professional fisheries biologist. “But there may be legal considerations that would prevent us from doing that.”
Pollock said his understanding is that present city regulations do not provide enough flexibility to allow the city to upgrade its requirements for docks or bulkheads to take new scientific developments into account.
“There have been lots of advances in our understanding of how to build bulkheads, so that they’re not environmentally damaging but actually beneficial,” he said. “We need to find a way to formalize our knowledge into regulations.”
Pollock said he would prefer so-called “adaptive” regulations to a moratorium.
“We would approve a certain type of bulkhead, then monitor it to see how it is working,” he said. “Then we would modify regulations based on what we find.”
The council meets at 6:30 p.m. tonight, Aug. 14.
