Years of courtroom battles could come to an end next week if the Board of Island County Commissioners approve an ordinance establishing a 50-foot buffer for all Type-5 streams.

Before the ordinance is approved, the commissioners considered adding a new clause to the ordinance.

At a hearing Monday morning, staff presented a grandfather clause stating that the new amendment wouldn’t apply to any existing uses but apply to future uses.

During the hearing which approximately eight citizens attended, Steve Erickson from the Whidbey Environmental Action Network said that the proposed new language was vague.

“I’m very curious to hear what kind of uses you have in mind,” Erickson said. “It appears to me facially to violate the Court of Appeals and GMA decision.”

WEAN and the county have been battling for years over buffers for Type-5 streams. A Type-5 stream is less than two feet wide and flows no less than two weeks per year.

The Growth Management Hearings Board found in 1999 that a 25-foot buffer that the county had adopted for Type-5 streams failed to comply with the Growth Management Act. Island County Superior Court reversed the Growth Board’s decision in November of 2000.

WEAN appealed to the state Court of Appeals, which affirmed the Growth Board’s ruling concerning stream buffers. The state Supreme Court declined last March to review the case.

The decision prompted several heated public meetings about the effects the increased buffers would have, particularly on land used for agriculture. The county sent information to rural residential property owners saying activities such as gardening could be banned from stream buffers.

The idea for the grandfather clause exempting current uses such as gardening and livestock raising from the new regulations came from public testimony during the last public hearing, Commissioner Mike Shelton said during an interview after the meeting.

Erickson wasn’t the only person questioning the need for a grandfather clause.

Keith Dearborn, the land use attorney hired by the county to help with the critical areas update, recommended during the meeting that the clause be deleted. He said the amendment wouldn’t affect property zoned commercial agriculture or rural agriculture.

Phil Bakke, Island County planning director, said after the meeting the grandfather clause would cause confusion. Property zoned rural always had a 50-foot buffers for Type-5 streams, Bakke said. For agriculture property, Best Management Practices regulate farming near a critical areas.

Shelton said the county will work on an ordinance allowing Best Management Practices to be used in rural areas instead of the 50-foot stream buffer. This might allow people who farm on a small scale to continue in areas affected by stream buffers.

“We’re going to do our best to address the issue of agriculture in the rural zone,” Shelton said. He added the new regulation should be finished by the end of the year.

As for the grandfather clause, Shelton said it will be pulled from consideration.

“It turns out it doesn’t have any substance,” Shelton said.

The new ordinance concerning Type-5 stream buffers comes before the commissioners again during their July 25 meeting.