Critical areas ordinance: clash of wildlife protection, property rights

This time of year, fresh bales of hay dot the lowlands of the Wenas Valley, a green contrast to the gray-brown shrub steppe on the rolling ridges above.

The difference between the green fields and arid grasslands could be a metaphor for long-simmering tensions between property rights and protecting wildlife -- tensions that are about to come to a head.

In recent years, growth and development around the Yakima Valley, and in the Wenas in particular, have been colliding with the government's mandate to protect fish and wildlife habitat, such as the shrub steppe preferred by sage grouse.

Add local landowners' private property rights, and it's a recipe for conflict.

Jill Paige, owner of the Stagecoach RV park above Wenas Lake, is one such landowner. She hadn't planned on entering any frays after ditching big-city life in Seattle more than two years ago to return home for a simpler life.

But Paige is one of dozens of Wenas Valley landowners who plan to attend a hearing July 7 on a set of development regulations -- called a critical areas ordinance -- that would impose new restrictions on some private land.

They are areas like the Wenas and the ridges above Cowiche, Selah and Moxee, which attract people seeking a little bit of country -- and who want to be left alone after they find it.

Paige is worried the new ordinance could make it difficult, or at least very expensive, to buy the five acres next door that she's been eyeing to expand the RV park.

"I'm all for helping the animals, and I don't want a condo next door," said Paige. "That's why we moved up here. But there's so much state land around here now, how much more do the birds need?"

Every county in the state is required to adopt a critical areas ordinance under the Growth Management Act, the state law adopted in 1990 in response to the threat posed to the environment and quality of life by uncoordinated and unplanned growth.

For several years, work on Yakima County's critical areas ordinance was relatively low-key, perhaps in part because the painfully arcane language of the Growth Management Act and its related administrative codes has made it nearly the exclusive domain of land-use lawyers, professional planners and habitat biologists.

Two years ago, the Yakima County Commission adopted a newly updated critical areas ordinance. But the ordinance drew appeals from a variety of interests, including Gov. Chris Gregoire, the state Department of Fish and Wildlife, environmentalists, cattlemen, farmers, home builders, the Yakama Nation, an irrigation district and individual landowners.

Now, some of those parties who argued the rules wouldn't do enough to protect wildlife have negotiated changes, a step they hope will settle the issue without going to court.

The matter may still end up in Superior Court and possibly the state Supreme Court, however, if any of the many parties don't like how the commissioners rule on the proposal.

Commissioner Rand Elliott, who sat in on many of the settlement talks, called the issue "far from settled."

Elliott said commissioners thought they had a fair and balanced ordinance in 2007.

"There's nothing I like more than standing in the Yakima River catching trout, but there are consequences when you impose limitations on people, and they have to be part of the consideration."

First, the public gets its say at the public hearing before the county commissioners at the Yakima Convention Center.

If the opinions of Jim Pierson, a Wenas Valley rancher and head of a group called Friends of the Wenas, are any indication, the hearing will be anything but bureaucratic and boring.

"I don't want someone building up above me," Pierson said recently, waving toward the meadows above his ranch off Maloy Road.

"We don't want to destroy this. But this is about my property. They want to take my property."

Wes Hazen is a Wenas Valley farmer, too, and he's on the other side. Development is threatening the rich biodiversity of the Upper Wenas, he said.

"There's really nothing in this that's going to affect agriculture," said Hazen, referring to exemptions in the proposed ordinance. "If I thought this was going to impair my ability to farm, I wouldn't be on this side of the issue.

"The real distinction is between people who have farming at heart and those who are hard-core private property rights advocates. In my view, those people are actually a threat to agriculture in the long term."

The "they" Pierson refers to includes some of his neighbors in the Upper Wenas Preservation Area, along with Fish and Wildlife, the state Department of Community, Trade and Economic Development, The Yakima Valley Audobon Society, and a group called Futurewise, a Seattle-based nonprofit that advocates for enforcement of the Growth Management Act.

These parties carved a compromise that, compared with the previous version, would put substantially more land in the Wenas Valley into an Upland Wildlife Conservation Area, subjecting it to various development restrictions.

The crux of the debate is whether those restrictions are onerous and costly and violate private property rights, or simply enforce the intent of the Growth Management Act.

The newly drawn map of the wildlife conservation area is more representative of the type of habitat that needs protection, according to Perry Harvester, regional habitat program manager in the Yakima office of the Wildlife Department.

Harvester said the new ordinance is needed to prevent the fracturing of important habitats for species, such as big game animals like elk, that migrate across large swaths of land.

"Once we lose our migration corridors or riparian habitats along streams, we're going to have significantly reduced wildlife populations," Harvester said.

"And that's a basic tenet of the Growth Management Act -- to protect what we have."

Robert Beattey, legal director of Futurewise, which represents preservationists in the Wenas Valley, said the proposed ordinance will preserve, not harm, agriculture.

"Once farmland is developed into a subdivision, you can't farm it," Beattey said.

Indeed, questions over who is really protecting the interests of agriculture -- ranchers or environmentalists -- are among the most passionately argued in this debate, usually in private.

And it can get nasty.

Some environmentalists say the ranchers want to be big-time developers and divide their 40- and 80-acre lots into five-acre pieces just to get rich.

Gene Jenkins, president of the Yakima County Farm Bureau, is a seasoned veteran of these debates. A former banker and businessman, he has his own small cattle operation in the Wenas and runs a larger hay-and-cattle concern nearby.

A pragmatist, Jenkins doesn't shy away from the fact that many ranchers and farmers in the Wenas are aging -- their average age is 70, he says -- and they view their property as their wealth and retirement.

"I know of no rancher or farmer who wants to take a 40-acre lot and divide into fives. But we're trying to preserve options," he said.

As written, Jenkins said the ordinance could prevent the construction of single-family residences on 40-acre lots in the wildlife habitat area and create lengthy and expensive reviews of any change of use on an individual's property -- including moving from grazing-only operations to orchard or row crops.

Those restrictions could include steps such as hiring a biologist to conduct a wildlife habitat analysis.

Such hoops would cost landowners tens of thousands of dollars, according to Jenkins.

John Ashbaugh, another rancher in the area, said the proposal would amount to an appropriation, or taking, of private property without compensation.

Ashbaugh said property owners with open land who wanted to sell the development rights to a trust or conservancy -- and make a little money -- would no longer have that option because the ordinance would have rendered the land undevelopable anyway.

Opponents of the proposal are exaggerating the restrictions, say Beattey of Futurewise and Harvester of Fish and Wildlife.

Existing agricultural operations, they point out, are exempt from standard development permits that would be required in the wildlife habitat area as long as existing natural vegetation is maintained.

"If someone proposes to build something, a commercial development or new nonagricultural structure, that's when it's going to kick off the review," Harvester said.

But Jenkins says the devil is in the interpretation.

"Regulations are subject to interpretation by bureaucrats. We're trying to get some certainty into those regulations," he said.

Many people in the Wenas Valley have simply had it, Jenkins said.

"A lot of people here have tried to get along, but they've reached the point where they've had enough."

* Leah Beth Ward can be reached at 509-577-7626 or lward@yakimaherald.com.

timeline

December 2007: Board of County Commissioners enacts the county's critical areas ordinance, which is aimed at protecting wetlands, aquifer recharge areas and fish and wildlife habitat, and regulating development in areas prone to floods or geological hazards.

February 2008: Arguing that the ordinance doesn't go far enough, state agencies, environmental groups and the Yakama Nation petition for review of the ordinance with the Eastern Washington Growth Management Hearings Board, which consolidated the cases.

October-November 2008 and January-April 2009: Six parties that agreed the ordinance was not restrictive enough reach a proposed settlement with the county with the help of a mediator. Other groups that supported the ordinance or thought it was too restrictive participated as intervenors, meaning they could participate in the discussions.

PUBLIC HEARING

WHAT: Public hearing on proposed changes to the critical areas ordinance written by county staff based on the settlement among some of the parties.

WHEN: 5:30 p.m. July 7.

WHERE: Yakima Convention Center.