July 27, 2011

PLF represents seaplane pilots in important shoreline permitting case

By PLF represents seaplane pilots in important shoreline permitting case

Author: Daniel Himebaugh

Douglas Tomczak owns property on Lake Whatcom, in Whatcom County, Washington.  Earlier this year, he asked the county for permission to use a soon-to-be built dock on his property to moor a seaplane.  Asking for permission to moor a seaplane on Lake Whatcom is not an unusual request, since the lake is home to an FAA approved seaplane base and is available for seaplane use.

The Washington Seaplane Pilots' Association helped Mr. Tomczak prepare his application.  The Association trains seaplane pilots on the proper cleaning of seaplanes, and offers a course to certify pilots in best management practices for protecting against invasive species, such as zebra mussels.  The county approved Mr. Tomczak's application subject to implementing the Association's recommended practices.

After county approval, the Washington Department of Ecology reviewed Mr. Tomczak's permit, and overturned it on the ground that the Association's recommendations for controlling invasive species were inadequate.  Ecology did not explain how the Association's recommended practices fail to ensure that Lake Whatcom will be protected from invasive species, nor did Ecology offer alternative standards that could be approved.  Moreover, there is nothing to suggest that Lake Whatcom is at risk from invasive species from seaplane moorage — the lake has long had seaplane traffic and does not contain invasive species.

Mr. Tomczak is appealing Ecology's decision to Washington's Shorelines Hearings Board.  PLF will represent the Association as an intervenor in Mr. Tomczak's case, arguing that its best management practices sufficiently control against invasive species, and that Mr. Tomczak should be allowed to moor his seaplane at his dock.  At the heart of this case is the idea that state regulations should not restrict private property uses that do not pose a significant threat to health, safety, or environmental resources.  Thus, government should not deny permits on the basis of a property owner's failure to disprove speculative environmental harm.

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