09/13/2012: "Questions Persist As Council Struggles’ With CAO Regulations"

(Council Public Hearing Tuesdayon CAO -screen capture photo)

No one expected it to be easy to review the county CAO (Critical Area Ordinance), but the decision early on to write a new one, using the existing as a reference and outline, may have made the process more difficult than it had to be. And then there was the problem of adopting a set of supporting science that was intended -in the words of the council’s attorney- to guide the decision making process.

The law required the council to adopt the BAS (“Best Available Science”) as the science they were to use, and while they could have adopted what the DOE (Department of Ecology) had decided -for whatever reason- was the “Best,” they, wisely it turned out, decided to adopt their own.

Another not so easy task, and indeed they ended up with a bundle of BAS that only increased the controversy from those who want greater restrictions to advance the “precaution principle” into regulations, and from those who want only the restrictions necessary to do the job as required by the state legislature.

As the process moved forward problems quickly arose, and some were heavy on the surface Tuesday when the council held another, and maybe the last public hearing prior to the final adoption of a new CAO.

Not only the council members, but the staff struggled to understand not only the definitions of some of the terms used in the context of the CAO, but what some of the regulations would mean as they were enforced and, and how one would know when they were required, and to what extent- and this from those who have written it, lived with it, discussed it for years.

It has been asked how the regulators and the applicants will be able to understand it, if those creating it have to ask “what does it mean?”

Like all too many of the questions asked at public hearings and during the three minutes allowed for the public to speak, that question too goes unanswered.

As the meeting progressed on Tuesday, one concern and one question from a council member lead to more uncertainty, and more requests for explanations and additional information from their staff and their advisers.

Often the response from staff was to give an ad hock interpretation of how it could be viewed, or what would probably happen, or explained what an applicant might need to do, but the same interpretations and explanations and directions of how to proceed were not always in the language of the draft CAO the council was considering for adoption.

There were also serious concerns raised by attorneys, both local and off island, that the draft CAO was moving forward guided by misinterpretations of the intention of the state legislature and the guidance of past CAO law suits.

It was clear the council members were attempting to do the right thing, to do it correctly, and to follow the law, but they voiced concerns to each other that they may have, in fact, wandered off the path they thought was well marked, and some of them wanted to be sure they had not missed legal guide posts, or been given advise from staff that may be leading them into a legal quagmire.

So, questions were asked, more information was requested, and on September 20th the council will continue the discussion of what should the CAO say, how should it say it, and how open is it to interpretation that may lead them into appeals and court cases they will lose.

At the next meeting they will also review consistency with the CP (SJC Comprehensive Plan).

The CP is, after all, the county statement of the values, goals and policies of land use in San Juan County, and is the basis for those regulations that ensure those values, goals, and policies are spelled out in the regulations.

It is serious work with serious consequences, and the council is being told on the one hand “we need to get this done” and on the other hand “we need to take more time,” but both sides seem to agree it needs to done correctly.