[Previous entry: "Interim Director: $20,000 For Study Of Department"] [Next entry: "Murray: $25 Million Fed Funds For WA Salmon Recovery & $1.4 Million For N. Straits"]

06/20/2005: "DOE Tells Gaylord "It's Your Job To Do""

LaFarge Beach next to Jackson Beach

In the face of on-going charges that the Lafarge gravel pit has for years been conducting illegal shoreline modifications and dumping of material within the shoreline, the County has refused to take action, maintaining a hands-off policy when it comes to shoreline and upland enforcement actions on the property. Because the former BOCC had entered into a contract to purchase the former gravel pit, it has seen a conflict in effecting enforcement on a party that it is involved with in a land purchase contract. But until recently the County has failed to request action from state agencies to investigate when complaints have been made to the County about illegal actions at the site. As a result, no actions to date have been taken by the County or by the State.

According to one of those who has complained, when the DOE and DNR have been contacted about the alleged violations, they were told "they will not enforce without County request and backup". But when Randy Gaylord recently sent a letter to DOE telling them that DOE and the BOCC had an "agreement" that the State would enforce the County regulations with respect to the LaFarge property, DOE responded by saying that there is not, and never has been, any such agreement. Subsequent to the DOE response, the Prosecutors office sent out a notice that they too, had now determined there was no such agreement.

The following is the full content of the letter from the Department of Ecology to Prosecuting Attorney Randy Gaylord:

June 3, 2005

Randall K. Gaylord .
San Juan Prosecuting Attorney
P.O. Box 760
Friday Harbor, W A 98250

Re: Enforcement of Shoreline Management Act
Friday Harbor Sand & Gravel Property - San Juan Island

Dear Mr. Gaylord:

Jay Manning has asked me to respond to your correspondence dated May 19 and 20, 2005,addressed to him and to Attorney General McKenna. After consulting with our Assistant Attorney General (AAG), Tom Young, I see a need to clarify the respective roles of local government and the Department of Ecology (department) regarding the administration of the Shoreline Management Act, Chapter 90.58 RCW.

You suggested in your letters that the department and your office have an "understanding" or "agreement," dating back to 2003, that the state will assume enforcement responsibility for the Friday Harbor Sand and Gravel (FHSG) property while the county is negotiating to purchase the property. Neither we nor the attorney general's office has ever entered into such an understanding or agreement, either explicitly or implicitly. Please refer to Tom Young's letter of January 22,2003 in which he simply stated that he "would review this matter with our client" That is as far as the matter ever progressed.

As your recent letters indicate, the Act does grant independent authority to the department to seek compliance with the policies and provisions established therein. That has been a part of our relationship with local governments since the Act was adopted. However, RCW 90.58.050 states:

"...Local government shall have the primary responsibility for initiating the planning required by this chapter and administering the regulatory program consistent with the policy and provisions of this chapter. The department shall act primarily in a supportive and review capacity with an emphasis on providing assistance to local government and on insuring compliance with the policy and provisions of this chapter". (My emphasis)

The department does not assume primary compliance authority except under limited circumstances and we do not see such circumstances present here. Although the Act does provide for joint enforcement, it is not, as you suggest, "because this type of situation is bound to occur from time to time." The provision for joint authority has more to do with the department's statewide authority and technical expertise. Moreover, the county's own development code mandates that "the administrator shall investigate" all suspected violations of the code (ODC 18.100.040). We read the statute and the county code to require the county to investigate and to take both actions.

We understand that you believe your office may have a conflict of interest because of your role in county negotiations to purchase the FHSG property. We do not necessarily share your view that a conflict exists but, regardless, we are at a loss to understand how the alleged conflict in your office affects the county Community Development and Planning Department (CDPD), which is charged with investigating alleged violations and enforcing the Act and the county shoreline regulations.. it is our understanding that the county appointed outside counsel to represent the CDPD while the negotiations are progressing. We wonder, then, why the CDPD has not been working with their outside counsel to investigate alleged violations at the FHSG property.
.
The department does want to work with San Juan County to protect its shorelines but, again, we do not see any compelling reason for the department to assume primary enforcement authority. In answer to the question you posed in your letter of May 19, when citizens wish to make complaints about activities at the Friday Harbor Sand & Gravel site we believe they should be directed to the San Juan County Community Development and Planning Department and that the CDPD should investigate and then respond appropriately. In an effort to be supportive, the department has agreed to send a Warning and Investigation letter to representatives of Friday Harbor Sand & Gravel. Any information we receive in response will be forwarded to the CDPD to use in carrying out its obligation to administer and enforce shoreline policies and regulations.

If you have further questions please address them to me or to Bob Fritzen. We will keep Jay Manning and Tom Young informed.

Sincerely,

Richard M. Grout
Manager