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HomeMy WebLinkAbout2. 2013 Final Formal JeffCo Resp to ECY on Chgs to LA-SMP_w FF Aq November 2013 Page 1 of 48 FINAL Response to Ecology: Required and Recommended Changes Jefferson County SMP Comprehensive Update Formal Jefferson County Response to Ecology on Changes to the Locally Approved Shoreline Master Program – FINAL (November2013) On January 26, 2011 the Washington Department of Ecology (Ecology) issued its conditional approval of the Jefferson County Locally Approved Shoreline Master Program (LA-SMP) pending some required and recommended changes. The County has considered a total of 63 possible changes to the LA-SMP and provides this response to Ecology to indicate what changes are accepted as proposed by Ecology and where alternative and additional changes are proposed. This Final Response document includes proposed changes previously reviewed by Ecology staff as the 10/31/2011 Response Matrix and the 8/29/2013 Final Finfish Aquaculture addendum. The County’s rationale for each change is included at the end of this document but will not be codified. Proposed changes are shown below in line-in/line-out bill format with text to be added to the SMP shown as underlined, and deleted text shown in strikethrough: ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP Ecology’s Attachment B. Required Changes 1 Article 1.7.E 1-6 Applicability - Ocean Resource Management Act The planning and project review criteria in RCW 43.143 (Ocean Resources Management Act) and WAC 173‐26‐360 (Ocean Management) shall apply to all ocean uses and activities conducted within Jefferson County’s and the State of Washington’s jurisdiction, including those areas extending to the westernmost boundary of the State of Washington. Alternative Proposal Add new item ‘E’ to read: E. Ocean uses and activities conducted within Jefferson County’s and the State of Washington’s jurisdiction shall comply with RCW 43.143 (Ocean Resources Management Act) and WAC 173‐26‐360 (Ocean Management). Nothing in this paragraph is intended to expand or modify the applicability of RCW 43.143, WAC 173-26-360, or any subsections thereof, to ocean uses and activities not otherwise governed by those laws, administrative rules, or their subsections. 2 Article 1.6.A.2 1-5 Critical Areas - REUV 2. Uses and developments within shoreline jurisdiction that meet the Reasonable Economic Use Variance provisions of JCC Chapter 18.22.090 shall require a shoreline variance in accordance with this Program. Agree Delete text as follows: 2. Uses and developments within shoreline jurisdiction that meet the Reasonable Economic Use Variance provisions of JCC Chapter 18.22.090 shall require a shoreline variance in accordance with this Program. Attachment 2 November 2013 Page 2 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 3 Article 4.1.D Appendix. A -Map 18 4-1 Map #18 SEDs Add text to page A-1: The shoreline environment designation in ocean coastal areas waterward of the OHWM extending to the westernmost boundary of the State of Washington shall be aquatic. Alternative Proposal Add text to Article 4.1.D and to Map #18 to read: The shoreline environment designation in ocean coastal areas waterward of the OHWM extending to the westernmost boundary of the State of Washington shall be Priority Aquatic. 4 Article 2.A.27 2-3 Definitions – Appurtenance, normal Appurtenance, normal means a structure or use that is necessarily connected to a primary use and is located landward of the ordinary high water mark. Normal appurtenances for residential development are garages(up to 3 cars), utilities, septic tanks, drainfields, as well as driveways, walkways, and fences plus initial clearing and grading for a new residence which does not exceed 250 square feet and which does not involve placement of fill in any wetland or waterward of the ordinary high water mark,. Alternative Proposal Appurtenance, normal means a structure or use that is necessarily connected to a primary use and is located landward of the ordinary high water mark. Normal appurtenances for residential development are garages (up to 3 cars), utilities, septic tanks and drainfields, as well as driveways, walkways, and fences, plus initial clearing and grading for a new residence which does not exceed 250 cubic yards and which does not involve placement of fill in any wetland or waterward of the ordinary high water mark. 5 Article 2.S.22 2-39 Definitions – Shorelines of Statewide Significance Revise “Shorelines of statewide significance” definition to include (add) “…the area between the ordinary high water mark and the western boundary of the state, within Jefferson County and State of Washington jurisdiction, including harbors, bays, estuaries, and inlets”. Agree Add new item ‘a’ and reformat list to read as follows: a. The area between the ordinary high water mark and the western boundary of the state, within Jefferson County and State of Washington jurisdiction, including harbors, bays, estuaries, and inlets. November 2013 Page 3 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 6 Article 4.1.D 4-1 SEDs – Quinault Reservation D. All areas within shoreline jurisdiction that are not mapped and/or not designated shall be designated Conservancy until the area is redesignated through a Master Program amendment, except within the Quinault Indian Nation reservation where the upland designation shall be Natural and the waterward designation shall be Priority Aquatic. Agree Add text to read: D. All areas within shoreline jurisdiction that are not mapped and/or not designated shall be designated Conservancy until the area is redesignated through a Master Program amendment, except within the Quinault Indian Nation reservation where the upland designation shall be Natural and the waterward designation shall be Priority Aquatic. 7 Article 6.1.D.1 6-4 Critical Areas - REUV 1. Subject to the exceptions listed below, the Critical Areas provisions of JCC Chapter 18.22, dated March 17, 2008, Ordinance #03‐0317‐08, and further amended on May 11, 2009 as Ordinance # 06‐0511‐09, are incorporated by reference, except that permit, nonconforming use, appeal, Reasonable Economic Use Variance, and enforcement decisions within shoreline jurisdiction shall be governed by this Program and not JCC Chapter 18.22. Alternative Proposal Revise text to read as follows: 1. The Critical Areas provisions of JCC Chapter 18.22, dated March 17, 2008 [Ordinance #03-0317-08], and further amended on May 11, 2009 [Ordinance #06-0511-09], are incorporated by reference, however, the following exceptions shall prevail for actions occurring within shoreline jurisdiction: i. All provisions listed in Sections D.2 - 13 and E.1 - 4 below (e.g. building setback, buffers, CASPs, reasonable use, non- conforming lots, water-oriented use/development) and provisions found in Article 10.6 of this Program (i.e. non- conforming development), shall be governed by this Program and not JCC Chapter 18.22; and ii. Sections of JCC Chapter 18.22 Article II and other sections of JCC Chapter 18 regarding permit process, administrative, nonconforming use, appeal, and enforcement provisions within shoreline jurisdiction shall be governed by this Program and not JCC Chapter 18.22. November 2013 Page 4 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 8 Article 6.1.D.3 6-5 Critical Areas - REUV 3. Development applications that are processed according to the Reasonable Required deletion to avoid confusion Economic Use Variance provisions of JCC Chapter 18.22.090 shall be processed as a shoreline variance according to the provisions of this Program and WAC 173‐27. Agree Delete text as follow: 3. Development applications that are processed according to the Reasonable Economic Use Variance provisions of JCC Chapter 18.22.090 shall be processed as a shoreline variance according to the provisions of this Program and WAC 173‐27. 9 Article 6.D.3 6-5 DUPLICATE OF #8 ABOVE 10 Article 7.C.3 7-18? Dredging Add: Maintenance dredging may not be approved under exemption except within the existing footprint in accordance with previous approved plans. Agree Add new item ‘7’ to read: Maintenance dredging may not be approved under exemption except within the existing footprint in accordance with previous approved plans. 11 Article 7.2.F.5 7-10 Boating Facilities – Regulations - Residential Docks 5. The length of docks and piers accessory to residential use/development shall be no greater than that required the minimum demonstrated necessary for safety and practicality for the residential use. The maximum length for residential docks or piers shall be limited to sixty (60) 100 feet as measured horizontally from the ordinary high water mark. The Administrator may approve a different dock or pier length when needed to: i. Avoid known eelgrass beds, forage fish habitats, or other sensitive nearshore resources; or ii. Reach adequate depths to accommodate watercraft; or iii. Accommodate shared use. Agree Revise to read as follows: 5. The length of docks and piers accessory to residential use/development shall be no greater than that required the minimum demonstrated necessary for safety and practicality for the residential use. The maximum length for residential docks or piers shall be limited to sixty (60) one hundred (100) feet as measured horizontally from the ordinary high water mark. The Administrator may approve a different dock or pier length when needed to: i. Avoid known eelgrass beds, forage fish habitats, or other sensitive nearshore resources; or ii. Reach adequate depths to accommodate watercraft; or iii. ii. Accommodate shared use. November 2013 Page 5 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 12 Article 8.2.A.10 8-4 Aquaculture Policies 1. Commercial and recreational shellfish areas including Shellfish Habitat Conservation Areas are critical habitats. Shellfish aquaculture activities within all public and private tidelands and bedlands are allowed uses. Such activities include but are not limited to bed marking, preparation, planting, cultivation, and harvest. Nothing in this program should be construed as to preclude their use. Agree Delete text to read as follows: 10. Commercial and recreational shellfish areas including Shellfish Habitat Conservation Areas are critical habitats. Shellfish aquaculture activities within all public and private tidelands and bedlands are allowed uses. Such activities include but are not limited to bed marking, preparation, planting, cultivation, and harvest. Nothing in this program should be construed as to preclude their use. Note: Also see combined response to #13 - 15 below. 13 Article 4.3 – Use Table 4-6 Use Table – Net Pens/Finfish Net Pens/Finfish X* X* X* X* X* X* Alternative Proposal Add and delete text to read as indicated in combined response for #13, 14 and 15 below; Article 8.2 Aquaculture shown in its entirety to provide context for finfish aquaculture provisions, including text changes in response to other ECY required and recommended changes: 14 Article 8.2.B.1 and 2 Article 8.2.C.1 through 6 Article 8.2.D.8 and 9 8-4 to 8-8 Aquaculture – Prohibitions Aquaculture – Shoreline Environment Regulations Aquaculture – Regulations - General B. Uses and Activities Prohibited Outright 1. Net pens, as defined in Article 2, are prohibited. 2. Finfish aquaculture requires conditional use approval. 3. Applicants for aquaculture activities that use or release herbicides, pesticides, antibiotics, fertilizers, non‐indigenous species, parasites, pharmaceuticals, genetically modified organisms, feed or other materials known to be harmful into surrounding waters is prohibited. must demonstrate all significant impacts have been mitigated. Alternative Proposal Add and delete text to read as indicated in combined response for #13, 14 and 15 below; Article 8.2 Aquaculture shown in its entirety to provide context for finfish aquaculture provisions, including text changes in response to other ECY required and recommended changes: November 2013 Page 6 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 15 Article 8.2.A.12 and 13 8-4 Aquaculture - Policies 12. Net pens, as defined in Article 2, should not be allowed. 13. Finfish aquaculture that uses or releases herbicides, pesticides, antibiotics, fertilizers, pharmaceuticals, non‐indigenous species, parasites, genetically modified organisms, or feed into surrounding waters must demonstrate all significant impacts have been mitigated.should not be allowed. Alternative Proposal Add and delete text to read as indicated in combined response for #13, 14 and 15 below; Article 8.2 Aquaculture shown in its entirety to provide context for finfish aquaculture provisions, including text changes in response to other ECY required and recommended changes: November 2013 Page 7 of 48 FINAL Response to Ecology: Required and Recommended Changes Combined Response for Required Changes #13, 14 and 15 regarding Finfish Aquaculture: Add and delete text to read as follows; Article 8.2 Aquaculture shown in its entirety to provide context for finfish aquaculture provisions, including text changes in response to other ECY required and recommended changes (courtesy reference notes will not be codified): Article 2 Definitions C.26. Critical habitat means habitat areas with which endangered, threatened, sensitive or monitored plant, fish, or wildlife species have a primary association (e.g., feeding, breeding, rearing of young, migrating). Such areas are identified herein with reference to lists, cat egories, and definitions promulgated by the Washington Department of Fish and Wildlife as identified in WAC 232-12-011 or 232-12-014; in the Priority Habitat and Species (PHS) program of the Department of Fish and Wildlife; or by rules and regulations ad opted by the U.S. Fish and Wildlife Service, National Marine Fisheries Service, or other agency with jurisdiction for such designations. See also Habitat of special significance. E.15. Experimental aquaculture means aquaculture that uses cultivates new species, or uses growing methods or harvesting techniques that have not previously been cultivated used in the state of Washington and that differ significantly from common practice. H.2. Habitat of special significance means eelgrass beds, kelp beds, rocky reef habitat, geoduck beds, hardshell clam beds, habitat having significant populations or which are important to the feeding, reproduction or other life stages of Dungeness crabs, herring, lingcod/greenlin g, true cod, soles and flounders, rock fishes, cabezon and other large sculpins, or sea perch, wildlife refuges and habitats of endangered or threatened species, and other habitat referenced by the 1986 Interim Guidelines for Salmon Net Pen Culture in Puget Sound, as determined on a case - by-case basis in consultation with Washington Department of Fish and Wildlife. See also Critical habitat. I.17. In-water finfish aquaculture means the farming or culture of vertebrate or cartilaginous food fish for market sale when raised in facilities located waterward of the ordinary high water mark in freshwater or saltwater water bodies, in either open-flow or contained systems. This includes net pens, sea cages, bag cages and similar floating/hanging containment structures and is intended to reflect the definition of ‘marine finfish rearing facilities’ (RCW 90.48.220 ), but does not include temporary restoration/enhancement facilities used expressly to improve populations of native stocks and that meet the definition of ‘watershed restoration project’ per R CW 89.08.460. November 2013 Page 8 of 48 FINAL Response to Ecology: Required and Recommended Changes Article 4. 3 Allowed Use Table Table 1 - Permitted, Conditional and Prohibited Uses by Shoreline Environment Designation P = Use may be permitted subject to policies and regulations of Program. May require Shoreline substantial development permit or Statement of exemption approval. See Articles 6, 7, 8, 9 and/or 10 for details. C(a) = Conditional use administrative. See Articles 2, 9 and 10 for definition, criteria and process details. C(d) = Conditional use discretionary. See Articles 2, 9 and 10 for definition, criteria and process details. X = Prohibited use. * = Exceptions and limitations may apply as noted in the Program. See specific section for details. Environment Designations Waterward of OHWM Landward of OHWM Priority Aquatic Aquatic Natural Conservancy Shoreline Residential High Intensity Aquaculture: Aquaculture activities other than geoduck, in- water finfish, and upland finfish. P P P P P P Geoduck P P C(d) C(d) C(d) P Net Pens/Finfish X* X* X* X* X* X* In-water Finfish (including Net Pens) X C(d) X*/C(d) X X C(d) Upland Finfish X C(d) X C(d) X C(d) November 2013 Page 9 of 48 FINAL Response to Ecology: Required and Recommended Changes Article 8.1 Agriculture A. Policies – Add new policy: 8. The County recognizes the importance of local food production, both on land and in water areas, when properly managed to control pollution and prevent environmental damage. As consistent with the Jefferson County Comprehensive Plan, RCW 36.70A.030, and RCW 90.58.065, upland finfish aquaculture is considered agricultural production. However, for purposes of this Program, upland finfish aquaculture should instead be managed as aquaculture and aquaculture activities, as defined i n Article 2. B. Shoreline Environment Regulations – Add and delete text to read: 1. Priority Aquatic: New agricultural activities are prohibited, except upland finfish aquaculture per the aquaculture policies and regulations of this Program . 2. Aquatic: New agricultural activities are prohibited, except upland finfish aquaculture per the aquaculture policies and regulations of this Program . 3. Natural: New agricultural activities are prohibited, except that low intensity agricultural activities such as grazing may be allowed subject to policies and regu lations of this Program; provided that such low intensity agriculture does not expand or alter agricultural practices in a manner i nconsistent with the purpose of this designation. All other agricultural activities are prohibited, except upland finfish aquaculture per the aquaculture policies and regulations of this Program . C. Regulations – Add new regulation: 3. Upland finfish aquaculture use and development shall be subject to the Aquaculture policies and regulations (Article 8 section 2) of this Program. Article 8.2 Aquaculture A. Policies 1. Aquaculture is a preferred, water-dependent use of regional and statewide interest that is important to the long-term economic viability, cultural heritage and environmental health of Jefferson County. 2. The County should support aquaculture uses and developments that: i. Protect and improve water quality; and ii. Minimize damage to important nearshore habitats; and iii. Minimize interference with navigation and normal public use of surface waters; and iv. Minimize the potential for cumulative adverse impacts, such as those resulting from in -water structures/apparatus/equipment, land-based facilities, and substrate disturbance/modification (including rate, frequency, and spatial extent). November 2013 Page 10 of 48 FINAL Response to Ecology: Required and Recommended Changes 3. When properly managed, aquaculture can result in long-term ecological and economic benefits. The County should engage in coordinated planning to identify potential aquaculture areas and assess long-term needs for aquaculture. This includes working with the Department of Fish and Wildlife (DFW), the Department of Natural R esources (DNR), area tribes and shellfish interests to identify areas that are suitable for aquaculture and protect them from uses that would threaten aquaculture’s long-term sustainability. 4. Aquaculture use and development should locate in areas where biophysical conditions, such as tidal currents, water temperatur e and depth, will minimize adverse environmental impacts. Individual aquaculture uses and developments should be separated by a sufficient distance to ensure that significant adverse cumulative effects do not occur. 5. The County should support tideland aquaculture use and development when consistent wit h this Program and protect tidelands and bedlands that were acquired and retained under the Bush and Callow Acts by not permitting non-aquaculture use and development on these tidelands. 6. Intensive residential uses, other industrial and commercial uses, and uses that are unrelated to aquaculture should be locate d so as not to create conflicts with aquaculture operations. 7. The County should promote cooperative arrangements between aquacultur e growers and public recreation agencies so that public use of public shorelines does not conflict with aquaculture operations. 8. Experimental forms of aquaculture involving the use of new species, new growing methods or new harvesting techniques should b e allowed when they are consistent with applicable state and federal regulations and this Program. 9. The County should support community restoration projects associated with aquaculture when they are consistent with this Progr am. 10. Commercial and recreational shellfish areas including Shellfish Habitat Conservation Areas are critical habitats. Shellfish aquaculture activities within all public and private tidelands and bedlands are allowed uses. Such activities include but are not limited to bed marking, prepa ration, planting, cultivation, and harvest. Nothing in this program should be construed as to preclude their use. [Note: See Required Change #12] 11. Chemicals and fertilizers used in aquaculture operations should be used in accordance with state and federal laws, and this Program. 12. The County recognizes upland finfish aquaculture is considered a type of agricultural production by the Jefferson County Comp rehensive Plan, RCW 36.70A.030, and RCW 90.58.065. However, for purposes of this Program, upland finfish aquaculture should instead be managed as aquaculture and aquaculture activities, as defined in Article 2. 13. Finfish aquaculture that uses or releases herbicides, pesticides, antibiotics, fertilizers, pharmaceuticals, non-indigenous species, parasites, viruses, genetically modified organisms, or feed, or other materials known to be harmful into surrounding waters should not be allowed unless significant impacts to surrounding habitat and conflicts with adjacent uses are effectively mitigated. 14. The County should prefer all finfish aquaculture use and development (in-water and upland) that operates with fully-contained systems that treat effluent before discharge to local waters over open systems. 15. The County should allow in-water finfish aquaculture in the open waters of the Strait of Juan de Fuca only when the area seaward of the ordinary high water mark (OHWM) which is subject to the County’s jurisdiction extends a considerable distance, and when consistent with other provisions of this Program. 16. The County should prohibit in-water finfish aquaculture in waters of Jefferson County where there are habitat protection designations in place and/or water quality issues documented. November 2013 Page 11 of 48 FINAL Response to Ecology: Required and Recommended Changes B. Uses and Activities Prohibited Outright 1. In-water finfish aquaculture use/development, including net pens as defined in Article 2, shall be prohibited in the following a reas due to established habitat protection designations and/or water quality issues: a. Protection Island Aquatic Reserve or within fifteen hundred feet (1,500’) of the boundary; b. Smith and Minor Islands Aquatic Reserve or within fifteen hundred feet (1,500’) of the boundary; c. Discovery Bay, south of the boundary of the Protection Island Aquatic Reserve; d. South Port Townsend Bay Mooring Buoy Management Plan Area; and e. Hood Canal, south of the line extending from Tala Point to Foulweather Bluff , including Dabob and Tarboo Bays. C. Shoreline Environment Regulations 1. Priority Aquatic: Aquaculture activities may be allowed subject to the use and development regulations of the adjacent upland shoreline environment, except all finfish aquaculture (in-water and upland) is prohibited. 2. Aquatic: Aquaculture activities may be allowed subject to the use and development regulations of the adjacen t upland shoreline environment. 3. Natural: Aquaculture activities, except for geoduck aquaculture, may be allowed subject to policies and regulations of thi s Program. Geoduck aquaculture may be allowed with a conditional use permit (C(d)). All finfish aquaculture is prohibited, except in-water finfish aquaculture may be allowed with a conditional use permit (C(d)) where the area within the County’s jurisdiction extends seaward more than eight (8) miles from the OHWM, as measured perpendicularly from s hore. This does not require facilities to locate eight (8) miles offshore; see other provisions of this section for siting requirements and supplemental maps for additional information. 4. Conservancy: Aquaculture activities, except for geoduck aquacultu re, may be allowed subject to policies and regulations of this Program. Geoduck and upland finfish aquaculture may be allowed with a conditional use permit (C(d)). In-water finfish aquaculture is prohibited. 5. Shoreline Residential: Aquaculture activities, except for geoduck aquaculture, may be allowed subject to policies and regulations of this Program. Geoduck aquac ulture may be allowed with a conditional use permit (C(d)). All finfish aquaculture (in-water and upland) is prohibited. 6. High Intensity: Aquaculture activities may be allowed subject to policies and regulations of this Program, except upland all finfish aquaculture (in-water and upland) may be allowed with a conditional use permit ((C)d)). 7. For a summary and graphic approximation of the above shoreline environment regulations allowance of in -water finfish aquaculture, see Figure 1. November 2013 Page 12 of 48 FINAL Response to Ecology: Required and Recommended Changes Figure 1. Summary and Maps of SED Allowance for In -Water Finfish Aquaculture Shoreline Environment Designations (SEDs) Waterward Landward Priority Aquatic Aquatic OH W M Natural Conservancy Shoreline Residential High Intensity Would In-water Finfish Aquaculture be allowed to locate in this SED? No Yes No No No Yes Notes But only when the adjacent upland SED allows Except when there is 8+ miles of seaward jurisdiction Geographic Limitations: 1 Not within the Protection Island Aquatic Reserve, the Smith & Minor Islands Aquatic Reserve or within 1,500' of their boundar y 2 Not in Discovery Bay, south of the boundary for the Protection Island Aquatic Reserve, due to significant water quality concerns 3 Not within the South Port Townsend Bay Mooring Buoy Management Plan area or within 1,500' of the boundary, due to significant water quality concerns 4 Not in Hood Canal, south of the line from Tala Point to Foulweather Bluff (Kitsap County), due to significant water quality concerns Possible Siting Locations: 1 Strait of Juan de Fuca 2 Glen Cove 3 Mats Mats 4 Port Ludlow November 2013 Page 13 of 48 FINAL Response to Ecology: Required and Recommended Changes NOTE: Proposals also have to meet all conditional use permit (CUP) performance standards and other applicable provisions of this Pr ogram. Approximate locations are illustrated in the following four maps: November 2013 Page 14 of 48 FINAL Response to Ecology: Required and Recommended Changes November 2013 Page 15 of 48 FINAL Response to Ecology: Required and Recommended Changes November 2013 Page 16 of 48 FINAL Response to Ecology: Required and Recommended Changes November 2013 Page 17 of 48 FINAL Response to Ecology: Required and Recommended Changes November 2013 Page 18 of 48 FINAL Response to Ecology: Required and Recommended Changes D. Regulations – General 1. When a shoreline permit is issued for a new aquaculture use or development, that permit shall apply to the initial siting, co nstruction, and/or planting or stocking of the facility or farm. If the initial approval is a shoreline substantial development per mit, it shall be valid for a period of five (5) years with a possible one-year extension. If the initial approval is a conditional use permit, it shall be valid for the period specified in the permit. 2. Ongoing maintenance, harvest, replanting, restocking of, or changing the species cultivated in any existing or permitted aquaculture operation is not considered new use/development, and shall not require a new permit, unless or until: [Note: See Proposed Clarification #21] i. The physical extent of the facility or farm is expanded by more than twenty-five percent (25%) or more than twenty-five percent (25%) of the facility/farm changes operational/cultivation methods compared to the conditions that existed as of the effective date of this Program or any amendment thereto. If the amount of expansion or change in cultivation method exceeds twenty-five percent (25%) in any ten (10) year period, the entire operation shall be considered new aquaculture and shall be subject to applicable permit requirements of this section; or ii. The facility proposes to cultivate species not previously cultivated in the state of Washington. 3. Aquaculture uses and activities involving hatching, seeding, planting, cultivating, raising and/or harvesting of planted or n aturally occurring shellfish shall not be considered development, as defined in Article 2, and shall not require a shoreline substantial development permit, unless: i. The activity substantially interferes with normal public use of surface waters; or ii. The activity involves placement of any structures as defined in Article 2; or iii. The activity involves dredging using mechanical equipment such as clamshell, dipper, or scraper; or iv. The activity involves filling of tidelands or bedlands. 4. The County shall assess the potential for interference described in 8.2.C.3 on a case-by-case basis. All proposed new aquaculture uses or developments shall submit a Joint Aquatic Permit Application (JARPA) and SEPA checklist to enable assessment by the county. Activities shall not be considered to substantially interfere with normal public use of surface waters, unless: i. They occur in, adjacent to or in the immediate vicinity of public waters including public tidelands; and [Note: See Required Change #18] ii. They involve the use of floating ropes, markers, barges, floats, or similar apparatus on a regular basis and in a manner that substantially obstructs public access, or passage from public facilities such as parks or boat ramps; or they exclude the public f rom more than one acre of surface water on an ongoing or permanent basis. 5. Aquaculture activities not listed in 8.2.DC.3 and listed activities that fail to meet any of the criteria in 8.2.C.4 A.2 shall require a shoreline substantial development permit (SDP) or conditional use permit (CUP), and shall be subject to all of the following regulations: [Note: See Recommended Change #13] i. Subtidal, intertidal, floating, and upland structures and apparatus associated with aquaculture use shall be located, designed and maintained to avoid adverse effects on ecological functions and processes. November 2013 Page 19 of 48 FINAL Response to Ecology: Required and Recommended Changes ii. The County shall consider the location of proposed aquaculture facilities/farms to prevent adverse cumulative effects o n ecological functions and processes and adjoining land uses. The County shall determine what constitutes acceptable placement and concentration of commercial aquaculture in consultation with state and federal agencies and Tribes based on the specific characteristics of the waterbody, reach, drift cell, and uplands in the vicinity of the farm/facility. iii. Upland structures accessory to aquaculture use that do not require a waterside location or have a functional relationsh ip to the water shall be located landward of shoreline buffers required by the Program. iv. Overwater work shelters and sleeping quarters accessory to aquaculture use/development shall be prohibited. v. Floating/hanging aquaculture structures and associated equipment shall not exceed six (6) ten (10) feet in height above the water's surface. The Administrator may approve hoists and similar structures greater than six (6) ten (10) feet in height when there is a clear demonstration of need. The six ten foot height limit shall not apply to vessels. vi. Floating/hanging aquaculture facilities and associated equipment, except navigation aids, shall use colors and materials that blend into the surroundi ng environment in order to minimize visual impacts. vii. Aquaculture use and development shall not materially interfere with navig ation, or access to adjacent waterfront properties, public recreation areas, or tribal harvest areas. Mitigation shall be provided to offset such impacts where there is high probability that adverse impact would occur. This provision shal l not be interpreted to mean that an operator is required to provide access across owned or leased tidelands at low tide for adjacent upland owners. viii. Aquaculture uses and developments, except in-water finfish aquaculture, shall be located at least six hundred (600) feet from any National Wildlife Refuge, seal and sea lion haulouts, seabird nesting colonies, or other areas identified as critical feeding or migration areas for birds and mammals. In-water finfish facilities, including net pens, shall be located 1,500 feet or more from such areas. The County may approve lesser distances based upon written documentation that US Fish and Wildlife Service (USFWS), Washingto n Department of Fish and Wildlife (WDFW) and affected tribes support the proposed location. ix. Aquaculture use and development shall be sited so that shading and other adverse impacts to existing red/brown macro alg ae (kelp), and eelgrass beds are avoided. x. Aquaculture uses and developments that require attaching structures to the bed or bottomlands shall use anchors, such as helical anchors, that minimize disturbance to substr ate. xi. Where aquaculture use and development are authorized to use public facilities, such as boat launches or docks, the Count y shall reserve the right to require the applicant/proponent to pay a portion of the maintenance costs and any required improvements commensurate with the applicant's/proponent’s use. xii. Aquaculture use and development shall employ non -lethal, non-harmful measures to control birds and mammals. Control methods shall comply with existing federal and state regulations. xiii. Aquaculture use and development shall avoid use of chemicals, fertilizers and genetically modified organisms except whe n allowed by state and federal law. xiv. Non-navigational directional lighting associated with aquaculture use and development shall be used wherever possible and area li ghting should shall be avoided and minimized to the extent necessary to conduct safe operations. Non-navigational lighting shall not adversely affect vessel traffic. xv. Aquaculture waste materials and by-products shall be disposed of in a manner that will ensure strict compliance with all applicable governmental waste disposal standards, including but not limited to the Federal Clean Water Act, Section 401, and the Washington State Water Pollution Control Act (RCW 90.48). November 2013 Page 20 of 48 FINAL Response to Ecology: Required and Recommended Changes 6. Prior to approving a permit for floating/hanging aquaculture use and development or bottom culture involving structures, the County may require a visual analysis prepared by the applicant/proponent describing effects on nearby uses and aesthetic qualities of the shoreline. The analysis shall demonstrate that adverse impacts on the character of those areas are effectively mitigated. E. Regulations – Finfish 1. The culture of finfish, including net pens as defined in Article 2, may be allowed with a discretionary conditional use appro val (C(d)) subject to the policies and regulations of this Program. All finfish aquaculture (in-water and upland) shall meet, at a minimum, state approved administrative guideline for the management of net pen cultures. I n the event there is a conflict in requirements, the more restrictive requirement shall prevail. 2. General - All in-water finfish aquaculture (in-water and upland) proposals for facilities/operations shall: a. Provide the County, at the applicant/operator’s expense, a site characterization survey, baselin e surveys, and annual monitoring as described in the 1986 Interim Guidelines, or subsequent documents approved by the State. The applicant/operator shall also provide the County with copies of all survey an d monitoring reports submitted to WA Departments of Ecology, Fish & Wildlife, and Natural Resources. b. Submit an operations plan that includes projections for: i. Improvements at the site (e.g. pens, booms, etc.) and their relationship to the natural features (e.g. bathymetry, shorelines, etc.); ii. Number, size and configuration of pens/structures; iii. Schedule of development and maintenance; iv. Species cultured; v. Fish size at harvest; vi. Annual production; vii. Pounds of fish on hand throughout the year; viii. Average and maximum stocking density ix. Source of eggs, juveniles, and broodstock; x. Type of feed used; xi. Feeding method; xii. Chemical use (e.g. antifouling, antibiotics, etc.); and xiii. Predator control measures. November 2013 Page 21 of 48 FINAL Response to Ecology: Required and Recommended Changes c. Provide County with documentation of adequate property damage and personal injury commercial insurance coverage as required b y Washington Department of Natural Resources and other agencies. d. Where the County does not have expertise to analyze the merits of a report provided by an applicant, the applicant may be req uired to pay for third-party peer review of said report. 3. Bottom Sediments & Benthos a. The depth of water below the bottom of any in-water finfish aquaculture facility shall meet the minimum required by the 1986 Interim Guidelines (i.e. 20 – 60 feet at MLLW), as based on facility production capacity (Class I, II or III) and the mean current velocity at the site, measured as noted in the Guidelines or by more current data/methodology. b. In-water finfish aquaculture operations shall be prohibited where mean current velocity is less than 0.1 knots (5 cm/sec). c. The pen configuration (e.g. parallel rows, compact blocks of square enclosures, or clusters of various sized round enclosures, whether oriente d in line with or perpendicular to the prevailing current direction) of any in -water finfish aquaculture facility shall be designed and maintained to minimize the depth and lateral extent of solids accumulation. d. The use of unpelletized wet feed shall be prohibited to minimize undigested feed reaching the benthos or attracting scavenger s in the water column. e. Anchoring or mooring systems shall utilize adequately-sized helical devices or other methods to minimize disturbance to the benthos. 4. Water Quality a. All in-water finfish aquaculture facilities shall be designed, located and operated to avoid adverse impacts to water temperature, d issolved oxygen and nutrient levels, and other water quality parameters. Facilities must comply with National Pollutant Discharge Elimination Standards (NPDES) requirements. b. All in-water finfish aquaculture facilities shall monitor water quality and net cleaning activities to comply with State requirements (including WAC 173-201A-210), especially during periods of naturally high water turbidity. Additional net cleaning activities shall be performed, as needed, to ensure State water quality standards are met. 5. Phytoplankton a. In-water finfish aquaculture facility production capacity shall be limited in nutrient sensitive areas to protect water quality and shall not exceed 1,000,000 pounds annual production per square nautical mile. The following shall apply for specific geographic areas: i. In the main basin of Puget Sound (area south of the sill at Admiralty Inlet extending to the line between Tala Point and Foul weather Bluff, including Port Townsend Bay, Kilisut Harbor, and Oak Bay, and extending to the County’s b oundary midway to Whidbey Island), annual production shall be limited by the site characteristics in compliance with this Program. b. Applicants shall demonstrate through field and modeling studies that the proposed fish farms will not adversely affect existi ng biota. 6. Chemicals a. Only FDA-approved chemicals shall be allowed on a case-by-case basis for anti-fouling, predator control and other purposes. The use of tributyltin (TBT) is prohibited and all chemical use shall be reported to the State as required. November 2013 Page 22 of 48 FINAL Response to Ecology: Required and Recommended Changes b. When necessary, vaccination is preferred over the use of antibiotics. Only FDA -approved antibiotics shall be used and such use shall be reported to the State as required. Operator shall take all necessary precautions to ensure that nearby sediments and shellfish do not accumulate significant amounts of antibiotics. 7. Food fish & Shellfish a. All in-water finfish aquaculture facilities shall be located to avoid adverse impacts to habitats of special significance (as define d in Article 2) and populations of food fish and shellfish as follows, as determined on a case-by-case basis: i. When adjacent to any wildlife refuge, sanctuary, aquatic reserve or similar area intended to protect threatened or endangered species, locate a minimum of 300 feet in all directions from such protected areas; ii. When water depth is less than 75 feet, locate at least 300 feet down -current and 150 feet in all other directions from significant habitats; iii. When water depth is greater than 75 feet, locate at least 150 feet from significant habitat. b. The County shall designate protective buffer zones around habitats of special significance in accordance with marine area spa tial planning efforts led by the State, when such guidance and methodologies are available. 8. Importation of New Fish Species a. All in-water finfish aquaculture facilities shall comply with existing State and federal regulations to ensure importation of new an d/or non-native species does not adversely affect existing and/or native species. 9. Genetic Issues a. In compliance with State and federal requirements, in-water finfish aquaculture facilities that propose to culture species native to local waters should use stocks with the greate st genetic similarity to local stocks. b. When there is increased risk of interbreeding or establishment of naturalized populations of the cultured species that would in conflict with native stocks, only sterile or mono -sexual fish shall be allowed. c. All in-water finfish aquaculture facilities shall locate a minimum distance from river mouths where wild fish could be most vulnerable to genetic degradation, as determined on a case- by-case basis or by State guidance. 10. Escapement and Disease a. All in-water finfish aquaculture facilities shall comply with State and federal requirements to control pests, parasites, diseas es, viruses and pathogens and to prevent escapement including, but not limited to, those for certified eggs, approved import/transport and live fish transfer protocols, escapeme nt prevention, reporting and recapture plans, and disease inspection and control per RCW 77.15.290, RCW 77.115, WAC 220-76 and WAC 220-77 and other requirements as appropriate. b. The use of regional broodstock is preferred. November 2013 Page 23 of 48 FINAL Response to Ecology: Required and Recommended Changes c. As consistent with the above mentioned Washington statues and administrative rules, and other applicable author ities, all in-water finfish aquaculture facility operators shall provide the County with a Disease Response Plan to detail specific actions and timelines to follow when an outbreak is detected. The plan shall address transport permit denial, quarantine, confiscation, removal, and other possible scenarios, identify what agencies will be notified or involved, what alternate faci lities may be used, a public information/outreach strategy and other appropriate information. 11. Marine Mammals & Birds a. All in-water finfish aquaculture facilities shall locate a minimum of 1,500 feet from habitats of special significance for marine mammals and seabirds. b. Only non-lethal techniques (e.g. anti-predator netting) shall be allowed to prevent predation by birds and/or mammals on the cultured stocks. 12. Visual Quality a. All in-water finfish aquaculture facilities shall conduct a Visual Impact Assessment to evaluate and document the following siting a nd design variables in order to minimize visual impacts to adjacent and surrounding uses: i. Locate offshore from low bank shorelines rather than high bluff areas where angle of viewing becomes more perpendicular to th e plane of water making the facility more visually evident; ii. Locate offshore a minimum of 1,500 feet from ordinary high water mark, or a minimum of 2,000 feet when higher density residen tial development (Rural Residential 1:5, Urban Growth Area, Master Planned Resort, and pre-existing platted subdivisions with density equivalent/greater to such) is present along the adjacent upland. The County may require a greater distance as determined by a visual impact assessment. iii. Facilities shall be designed to maximize a horizontal profile to repeat the plane of the water surface rather than project vertically above the water surface. Vertical height shall be the minimum feasible, not to exceed 10 feet from the surface of the water. iv. Facilities shall be designed so that the overall size and surface area coverage does not ex ceed 10% of the normal cone of vision, dependent on the foreshortening created by the offshore distance and the average observation height. v. Facilities shall be designed to borrow from the form of structures and materials already in the environment (e.g. pi lings, docks, marinas) and to blend with the predominate color schemes present (i.e. blue, green, gray, neutral earth tones). The colors of white and black shall be minimized as they have highly variable appearance in response to lighting conditions. Bright colors such as red, yellow, and orange shall be avoided, unless required for safety purposes. The use of a variety of m aterials or colors shall be limited and ordered. vi. Facilities proposed to locate in the vicinity of existing in-water finfish aquaculture facilities shall evaluate the aggregate impacts and cumulative effects of multiple operations in the same area. vii. Facilities shall be designed and located so that the surface area of individual operations does not exceed 2 acres of surface coverage and no more than one operation per square nautical mile November 2013 Page 24 of 48 FINAL Response to Ecology: Required and Recommended Changes viii. Land based access for parking, staging, launching, and storage associated with any in -water finfish aquaculture facilities shall be evaluated for visual impacts and conflicts with adjacent upland uses. 13. Navigation, Military Operations and Commercial Fishing a. When appropriate, in-water finfish aquaculture facilities shall be located close to shore and near existing navigational impediments (i.e. marinas , docks). b. All in-water finfish aquaculture facilities shall be designed, located and operated to avoid conflict with military operations. c. The County shall notify, as appropriate, marinas, ports, recreational and commercial boating/fishing organizations, and local tribes about comment opportunities during the permit review process, especially re: proposed location of fish farm and related navigational aids. 14. Human Health a. All in-water finfish aquaculture facilities shall be designed, located and operated to: i. Ensure adequate water quality compatible with good husbandry practices; ii. Report any known bacteriological characteristics of fish food used; iii. Ensure proper storage of fish food to avoid alteration or degradation of feed quality; and iv. Regularly monitor and report presence of parasites in farmed fish. v. Comply with federal, state and local food safety requirements including, but not limited to, source identification and country of origin l abeling, and Hazard Analysis & Critical Control Points Plan. 15. Recreation a. All in-water finfish aquaculture facilities shall ensure compliance with State and federal requirements, especially when location is proposed near underwater park facilities. b. All in-water finfish aquaculture facilities shall be located a minimum of 1,000 feet from any recreational shellfish beach, public tidelands, public access facilities (e.g. docks or boat ramps) or other areas of extensive or established recreational use. c. In-water finfish aquaculture operators shall inform the Notice to Mariners and other appropriate entities for nautical chart revisions and notify other sources that inform recreational uses (e.g. boaters, divers, shellfish harvesters). 16. Noise a. All in-water finfish aquaculture facilities shall be designed, located and operated to: i. Ensure compliance with state and federal noise level limits; ii. Require mufflers and enclosures on all motorized fish farm equipment; iii. When appropriate, prefer electric motors over internal combustion engines. November 2013 Page 25 of 48 FINAL Response to Ecology: Required and Recommended Changes b. The County may require an acoustical study, conducted at the applicant/operator’s expense, to ensure any audible impacts are identified and adequately addressed. 17. Odor a. All in-water finfish aquaculture facilities shall be designed, located and operated to: i. Ensure compliance with state limits regarding nuisances and waste disposal; ii. Follow best management practices including, but not limited to: 1. Daily removal and disposal of dead fish and other waste; 2. Regular cleaning of nets and apparatus; 3. Storage of food in closed containers; 4. Walkway design and use allows spilled food to fall into the water. iii. Maximize the distance between the facility and nearby residential use/development, downwind location preferred, to minimize i mpacts resulting from foul odors. 18. Lighting and Glare a. Facilities shall comply with USCG requirements for operational and navigational lighting. The height of the light source above the water surface shall be the minimum necessary , not to exceed 80 inches, unless otherwise specified by State or federal requirements. b. Facilities shall be designed so that any glare or shadows caused by the solar orientation are minimized. c. Facilities shall utilize materials that minimize glare caused by sunlight or artificial lighting. 19. Upland Shoreline Use a. All in-water finfish aquaculture facilities shall be designed, located and operated to minimize incompatible uses and degradation of upland area. 20. Local Services a. All in-water finfish aquaculture facilities shall be designed, located and operated to: i. Provide estimates of high, average, and low volumes of waste to be produced, in cluding catastrophic events; ii. Provide a waste management plan to include the method and frequency of collection, storage and disposal; and iii. Ensure compliance with local, state, federal waste disposal requirements. b. Equipment, structures and materials shall no t be discarded in the water and shall not be abandoned in the upland. November 2013 Page 26 of 48 FINAL Response to Ecology: Required and Recommended Changes F. Regulations – Application Requirements 6. 1. Prior to issuing a permit for any proposed bottom culture or floating/hanging culture aquaculture use or development, the County may require copies of permit applications and/or studies required by state and federal agencies to ensure provisions of this Program are met, including, but not limited to, the following information: i. Anticipated harvest cycles and potential plans for future expansion or change in species grown or harvest practices ii. Number, types and dimensions of structures, apparatus or equipment. iii. Predator control methods. iv. Anticipated levels of noise, light, and odor and plans for minimizing their impacts. v. Potential impacts to animals, plants, and water quality due to the discharge of waste water from any upland development. vi. Proof of application for an aquatic lands lease from the Washington State Departmen t of Natural Resources (DNR) or proof of lease or ownership if bedlands are privately held. vii. Department of Health (DOH) Shellfish Certification Number. viii. Department of Fish and Wildlife (DFW) commercial aquatic farm or non-commercial, personal consumption designation. ix. Proof of application for any permits required by the U.S. Army Corps of Engineers, Department of Health, or other agency x. Proof of application for any state and federal permits/approvals including any required federal consultation under Section 7 of the Endangered Species Act (16 U.S.C. § 1531 et seq., ESA). 7. 2. Prior to approving a permit for floating/hanging or upland aquaculture use and development or bottom culture involving structures, the County may require a v isual analysis prepared by the applicant/proponent describing effects on nearby uses and aesthetic qualities of the shoreline. The analysis shall dem onstrate that adverse impacts on the character of those areas are effectively mitigated. November 2013 Page 27 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 16 Article 8.3.F.1.iii and iv 8-10 Commercial Use – Regulations for Non-water- oriented F. Regulations – Non‐water‐oriented Use/Development Non‐water‐oriented commercial uses are prohibited on the shoreline unless they meet the following criteria: ii. The use is part of a mixed‐use project that includes an associated water‐dependent use or and‐ The commercial use provides a significant public benefit in the form of public access and/or ecological restoration. OR iii. Navigability is severely limited at the proposed site; or and The commercial use provides a significant public benefit in the form of public access and/or ecological restoration. Alternative Proposal Revise to include language provided in WAC 173-27-241(3)(d) to read as follows: 1. Non‐water‐oriented commercial uses are prohibited on the shoreline unless they meet the following criteria: i. The use is part of a mixed-use project that includes water- dependent uses and provides a significant public benefit with respect to the Shoreline Management Act's objectives such as providing public access and ecological restoration; or ii. Navigability is severely limited at the proposed site; and the commercial use provides a significant public benefit with respect to the Shoreline Management Act's objectives such as providing public access and ecological restoration. 17 Article 8.4.C.3 8-12 Forest Practices – Shoreline Environment Regulations In the Natural Environment, Conservancy: Forest practices may be allowed with Conditional Use approval, subject to the policies and regulations of this Program Alternative Proposal Revise language specific to the Natural Shoreline Environment Regulations to read as follows: 3. Natural: Forest practices may be allowed with Conditional Use approval, subject to the policies and regulations of this Program. 18 Article 8.2.D.4 8-5 Aquaculture – Regulations Activities shall not be considered to substantially interfere with normal public use of surface waters, unless: i. They occur in, adjacent to or in the immediate vicinity of public waters including public tidelands; and Agree Delete text to read as follows: Activities shall not be considered to substantially interfere with normal public use of surface waters, unless: i. They occur in, adjacent to or in the immediate vicinity of public waters including public tidelands; and November 2013 Page 28 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 19 Article 4.3 - Use Table Article 8.7.B.5 4-7 8-22 Recreation - Shoreline Environment Regulations for Non-water- oriented Article 8.9: Shoreline Residential: Water‐oriented commercial use and development may be allowed subject to policies and regulations of this Program. Non‐water‐oriented commercial uses may be allowed as a conditional use. Shoreline Residential: Water‐oriented recreational use and development is allowed subject to the policies and regulations of this Master Program. Non water‐oriented recreation is prohibited.may be allowed as a conditional use. Alternative Proposal Revise Use Table to show Recreation use/development in Shoreline Residential designation allowed as conditional use discretionary (C(d)). Revise text to read as follows: Shoreline Residential: Water‐oriented recreational use and development is allowed subject to the policies and regulations of this Master Program. Non water‐oriented recreation is prohibited.may be allowed as a conditional use. 20 Article 4.3 – Use Table 4-7 Use Table – Residential Boathouses Boathouses accessory to single family residences X X X C(a) P P XXXC(a) C(a) C(a) “A single water‐dependent boathouse, as defined in Article 2, accessory to single family residential development may be allowed with a conditional use permit and in accordance with Article 6 section 1.E.4.iii and other provisions of this Program.” Agree Revise Table 1 to be consistent with Article 8.8.E.3 to read as follows: Boathouses accessory to single family residences: PA AQ NAT CONS SR HI X X X C(a) P P X X X C(a) C(a) C(a) [Note: This will make the use a C(a) in the Shoreline Residential and High Intensity designations.] 21 Article 8.3.F.1.iii 8-10 DUPLICATE OF #16 ABOVE November 2013 Page 29 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 22 Article 9.3.A.9 9-4 Exemptions – Residential Docks Residential Docks ‐ Construction of an individual/single‐user or shared dock for private non‐commercial pleasure craft, for use by the owner, lessee, or contract purchaser of a single‐family or multi‐family residences. The private dock exemption applies to dock construction cost as specified in RCW 90.58.030(3)(e). if either: i. In saltwater, the fair market value of the dock does not exceed two thousand‐five hundred dollars ($2,500). For the purpose of this section saltwater shall include the tidally influenced marine and estuarine water areas of the state including local marine waters and all associated bays, inlets and estuaries; ii. In fresh waters the fair market value of the dock does not exceed ten thousand dollars ($10,000), but if subsequent construction having a fair market value exceeding two thousand‐five hundred dollars ($2,500) occurs within five (5) years of the completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this Program. Agree Revise text to read as follows: Residential Docks ‐ Construction of an individual/single‐user or shared dock for private non‐commercial pleasure craft, for use by the owner, lessee, or contract purchaser of a single‐family or multi‐family residences. The private dock exemption applies to dock construction cost as specified in RCW 90.58.030(3)(e). if either: i. In saltwater, the fair market value of the dock does not exceed two thousand‐five hundred dollars ($2,500). For the purpose of this section saltwater shall include the tidally influenced marine and estuarine water areas of the state including local marine waters and all associated bays, inlets and estuaries; ii. In fresh waters the fair market value of the dock does not exceed ten thousand dollars ($10,000), but if subsequent construction having a fair market value exceeding two thousand‐five hundred dollars ($2,500) occurs within five (5) years of the completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this Program. 23 Article 9.5.C 9-7 Critical Areas - REUV C. Proposals that qualify as a Reasonable Economic Use Variance pursuant to JCC Chapter 18.15.220 shall require a shoreline variance. Agree Delete text to read as follows: C. Proposals that qualify as a Reasonable Economic Use Variance pursuant to JCC Chapter 18.15.220 shall require a shoreline variance. November 2013 Page 30 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 24 Article 10.6.H.1 10-7 Non-conforming Development – Expansion w/o CUP or Variance H. Expansion/Enlargement without Conditional Use Permit or Shoreline Variance: 1. Single Family Residential: The Administrator may allow a one time landward enlargement or expansion of non‐conforming single family residences by the addition of space to the exterior of the main structure or the addition of normal appurtenances without a shoreline conditional use permit or shoreline variance provided, and subject to, the following: Agree Add text to read as follows: 1. Single Family Residential: The Administrator may allow a one- time landward enlargement or expansion of non‐conforming single family residences by the addition of space to the exterior of the main structure or the addition of normal appurtenances without a shoreline conditional use permit or shoreline variance provided, and subject to, the following: 25 Article 6.1.E.2.i 6-7 Critical Areas – Regulations - Buffer Exceptions – Common Line Buffer The proposed residence must be located within 300 100 feet of an… Alternative Proposal Decline; no text change: ‘The proposed residence must be located within 300 feet of an…’ [Note: This required change was indicated by Ecology Findings and Conclusions (page 40) but inadvertently omitted from Attachment B. Required Changes.] 26 Appendix A. Official Shoreline Map Maps #2 and 3 Map #2. Quimper; Map #3 Glen Cove; Marine Shoreline Reach CCC Ecology has shifted its policy on shoreline jurisdiction during the course of the County’s SMP Update. Port Townsend Paper Corporation’s aerated stabilization basin (ASB) also known as the Mill Pond does not meet statutory and administrative criteria for shoreline jurisdiction. The lagoon area to the south of the ASB/Mill Pond does meet jurisdiction criteria due to the hydrologic connection to Port Townsend Bay and the size of the water body. Agree Revise Maps #2 and 3 to remove Mill Pond from SMP jurisdiction but keep lagoon. [Note: See draft revised maps attached] [Note: This required change was communicated verbally to the Board on June 6, 2011 by the Ecology Project Officer. County received a letter indicating this direction on June 24, 2011.] November 2013 Page 31 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP Ecology’s Attachment C. Recommended Changes 1 Article 1.2.F 1-4 Applicability – Quinault Tribe F. The provisions of this Program shall not apply to lands held in trust by the United States for Indian Nations, tribes or individuals. Add: Where Tribal concerns are expressed in relation to SMP jurisdiction, those shall be resolved through appropriate government to government consultation in accordance with Washington State Centennial Accord and the RCW. Agree Add text to read as follows: F. The provisions of this Program shall not apply to lands held in trust by the United States for Indian Nations, tribes or individuals. Where Tribal concerns are expressed in relation to SMP jurisdiction, those shall be resolved through appropriate government to government consultation in accordance with Washington State Centennial Accord and the RCW. 2 Article 2.B.22 2-7 Definitions - Buffer 22. Buffer or buffer zone, strip, or area means the area adjacent to a shoreline or critical area that separates and protects the area from adverse impacts associated with adjacent land uses. A buffer is measured horizontally and perpendicularly from the ordinary high water mark to the foundation of a structure, and includes the three‐dimensional airspace above. Decline None 3 Article 2.C.13 2-10 Definitions – Community Dock Community dock means a dock that serves multiple residential properties including upland and waterfront lots in a subdivision or similar community setting. See also “shared use.” Agree Add text to read as follows: Community dock means a dock that serves multiple residential properties including upland and waterfront lots in a subdivision or similar community setting. See also “Shared use.” 4 Article 2.F.24 and 25 2-19 Definitions – Frontage Setback Frontage Setback: For purposes of determining setback locations relative to Ordinary High Water Mark on a site, perpendicular measurements shall be made from the nearest waterward edge of the foundation. Decline None [Note: See also Recommended Change #6.] November 2013 Page 32 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 5 Article 2.S.9 2-37 Definitions – Shared Use Shared Use means water access facilities for residential use, such as docks, which are shared by two or more owners. This can apply to adjoining waterfront lots or waterfront lots sharing access with upland properties. Alternative Proposal Add new text and reformat numbering to read as follows: 9. Shared use means a facility shared by two or more lots/parcels. This can apply to facilities for adjoining lots or facilities shared between waterfront and upland properties; comparable to ‘Community Structure’ per JCC 18.10.030. See also ‘Community dock’. 6 Article 2.N.8 2-29 Definitions – Non-conforming Lot Nonconforming lot means a legal lot of record in existence prior to the effective date of this Program and any amendments thereto, on which it is not possible to construct as structure outside of/landward of the shoreline buffer or which does not otherwise meet the minimum lot size requirements as set forth in this Program. For building envelope location purposes, frontage line shall be measured perpendicular to the ordinary high water mark as measured from the waterward foundation corners of adjacent structures. Alternative Proposal Add text to read as follows: 1. Nonconforming lot means a legal lot of record in existence prior to the effective date of this Program and any amendments thereto, on which it is not possible to construct as structure outside of/landward of the shoreline buffer or which does not otherwise meet the minimum lot size requirements as set forth in this Program. Depth of lot is measured as the distance from ordinary high water mark to the inside edge of the frontage setback. [Note: See also Proposed Clarification # 4.] 7 Article 6.1.E.1.iii 6-7 Critical Areas – Regulations - Buffer Exceptions – Non-conforming Lots iii. All single family residences approved under this section shall not extend waterward of the common‐line buffer; as measured in accordance with 6.7.B; and Agree Delete text to read as follows: iii. All single family residences approved under this section shall not extend waterward of the common‐line buffer; as measured in accordance with 6.7.B; and November 2013 Page 33 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 8 Article 6.1.B.8 6-3 Critical Areas – Regulations - No Net Loss & Mitigation Compensatory mitigation measures shall occur in the vicinity of the impact or at an alternative location within the same watershed or appropriate section of marine shoreline (e.g., reach or drift cell) that provides greater and more sustainable ecological benefits. When determining whether offsite mitigation provides greater and more sustainable benefits, the County shall consider limiting factors, critical habitat needs, and other factors identified by the locally adopted shoreline restoration plan [insert date of adoption or resolution number], or an approved watershed or comprehensive resource management plan. Agree Add text to include appropriate reference date upon final adoption of restoration plan; [anticipated to be same date as final adoption of SMP by local ordinance]. 9 Article 6.4.B.4.iii 6-20 Vegetation Conservation – Regulations – View Maintenance iii. Maintenance trimming of vegetation with main stem or supporting structures less than three (3) inches in diameter, except tree topping, Vegetation removal is not included; Maintenance trimming of the limbs or branches on a trees or shrub that has a main stem less than three (3) inches in diameter; Alternative Proposal Delete redundant text and delete ‘s’ to read as follows: iii. Maintenance trimming of vegetation with main stem or supporting structures less than three (3) inches in diameter, except tree topping, Vegetation removal is not included; v. Maintenance trimming of the limbs or branches on a tree s or shrub that has a main stem less than three (3) inches in diameter; [Note: See also Proposed Clarification # 9.] November 2013 Page 34 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 10 Article 6.1.E.2.iii 6-8 Critical Areas – Regulations - Buffer Exceptions – Common Line Buffer iii. Existing Home on One Side: Where there is only one existing residence adjacent to the proposed residence, the standard buffer shall be determined as the greater of either 1) a common line drawn between nearest corner of the foundation for the adjacent residence and the nearest point of the standard buffer Alternative Proposal Revise and add text to read as follows: iii. Existing Home on One Side: Where there is only one existing residence adjacent to the proposed residence, the standard common line buffer shall be determined as the greater of either 1) a common line drawn between nearest corner of the foundation for the adjacent residence and the nearest point of the standard buffer… 11 Article 7.2.F.9 7-11 Boating Facilities – Regulations - Residential Docks 9. Residential developments with more than four (4) lots or dwelling units may be granted permits for community docks that are shared by at least one other owner. No more than one (1) dock/pier or float may be permitted for each three (3) adjoining waterfront lots, with necessary access easements to be recorded at the time of permitting. Single‐user docks, piers and floats for individual residential lots may be permitted in existing subdivisions approved on or before January 28, 1993, only where a shared facility has not already been developed. Prior to development of a new single‐user dock/pier/float for a single residential lot, the applicant shall demonstrate that: Agree Revise formatting to read as follows: 9. Residential developments with more than four (4) lots or dwelling units may be granted permits for community docks that are shared by at least one other owner. No more than one (1) dock/pier or float may be permitted for each three (3) adjoining waterfront lots, with necessary access easements to be recorded at the time of permitting. 10. Single‐user docks, piers and floats for individual residential lots may be permitted in existing subdivisions approved on or before January 28, 1993, only where a shared facility has not already been developed. Prior to development of a new single‐user dock/pier/float for a single residential lot, the applicant shall demonstrate that: November 2013 Page 35 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 12 Article 8.8.D.2 8-26 Residential – Regulations – Primary Residences 2. The buffer requirements in Article 6 of this Program apply to residences, normal appurtenances, and accessory dwelling units, except that docks, floats, and pedestrian beach access structures and other water‐dependent and water related structures accessory to residential use may be permitted to encroach into the buffer in accordance with the applicable provisions of this Program. Accessory residential structures must be sited and designed to not require shoreline armoring within 100 years. Alternative Proposal Delete and add text to read as follows: 2. The buffer requirements in Article 6 of this Program apply to residences, normal appurtenances, and accessory dwelling units, except that docks, floats, and pedestrian beach access structures and other water‐dependent and water related structures accessory to residential use may be permitted to encroach into the buffer in accordance with the applicable provisions of this Program. Accessory structures must be sited and designed to not require shoreline armoring within 100 years. 13 Article 8.2.D.5 8-6 Aquaculture - Regulations Aquaculture activities not listed in 8.2.D.3 and listed activities that fail to meet any of the criteria in 8.2.C.4 8.2.A.2 shall require a shoreline substantial development permit (SDP) or conditional use permit (CUP), and shall be subject to all of the following regulations: Agree Revise text to read as follows: 5. Aquaculture activities not listed in 8.2.D.3 and listed activities that fail to meet any of the criteria in 8.2.C.4 8.2.A.2 shall require a shoreline substantial development permit (SDP) or conditional use permit (CUP), and shall be subject to all of the following regulations: 14 Article 10.20.B 10-16 Violations & Penalties B. Any person who willfully violates any court order or regulatory order of injunction issued pursuant to this Program shall be subject to a fine of not more than five thousand dollars ($5,000), imprisonment in the county jail for not more than ninety (90) days, or both. Alternative Proposal Add and delete text to read as follows: B. Any person who willfully violates any court order or regulatory order of injunction issued pursuant to this Program shall be subject to a fine of not more than five thousand dollars ($5,000), or imprisonment in the county jail for not more than ninety (90) days, or both, neither of which shall exceed the maximum fine or imprisonment stated in RCW 9.92.020 as currently enacted or as may hereafter be amended. November 2013 Page 36 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP Additional Jefferson County Revisions Proposed for Clarification 1 Article 6.1.A.3 6-1 SPAADs and vesting None Proposed Clarification Add text to read as follows: The County should recognize and honor buffers and setbacks established by existing plats, preliminary plats, issued permits, binding site plans (BSPs) and site plan approval advance determinations (SPAADs), and by development agreements that are consistent with RCW 36.70B. 2 Article 6.1.D.7 6-5 SPAADs and vesting None Proposed Clarification Add text to read as follows: The County shall recognize and apply a buffer or setback established by existing plats, preliminary plats, issued permits, binding site plans (BSPs) and site plan approval advance determinations (SPAADs), or a development agreement that is consistent with RCW 36.70B. 3 Article 2.F.5 2-16 Definitions – Fill None Proposed Clarification Line 28: Delete ‘than’ 4 Article 2.N.8 2-29 Definitions – Nonconforming lot None Proposed Clarification Line 27: Revise 'as' to 'a' 5 Article 2.R.9 2-35 Definitions – Recreation, shoreline None Proposed Clarification Line 5: Revise text to read as follows: '…means a commercial or public activity intended for personal enjoyment...' 6 Article 2.R.14 2-35 Definitions – Residential development None Proposed Clarification Line 35: Add text to read as follows: '…non-transient occupancy including single-family, multi-family, and creation of new residential lots by land division.' 7 Article 2.W.3 2-44 Definitions – Water- dependent use None Proposed Clarification Line 3: Revise asterisk notation to indicate source = ‘**’ WAC, not ‘***’ RCW November 2013 Page 37 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 8 Article 6.1.E.1.i 6-6 Critical Areas – Regulations - Buffer Exceptions – Non-conforming Lots None Proposed Clarification Line 28: Add text to read as follows: “1. Nonconforming Lots – Development Allowed without a Variance (Modest Home Provision): New single-family…” Line 34: Revise text to read as follows: '6.1.D.6' 9 Article 2.D.10 Article 6.4.B.3.i and 6.4.B.4 2-12 6-19 6-20 Definitions – DBH Vegetation Conservation – Regulations – View Maintenance None Proposed Clarification Add new definition and reformat numbering to read as follows: 10. Diameter at breast height (DBH) means the diameter of a tree at 4 ½ feet above the ground measured from the uphill side. Add text to read as follows: 3. i. '…hazard tree as defined by the Program. Tree topping is prohibited when main stem/trunk is over 3" diameter at breast height (DBH).' 4.v. Maintenance trimming of the limbs or branches on a tree or shrub that has a main stem less than three (3) inches in diameter at breast height (DBH); Note: See Also Recommended Change #9. 10 Article 6.6 6-22 Shoreline Setbacks and Height None Proposed Clarification Move section and renumber accordingly to occur alphabetically between ‘Public Access’ and ‘Vegetation Conservation’ 11 Article 7.2.B.2.ii 7-6 Boating Facilities – Shoreline Environment Regulations – Aquatic None Proposed Clarification Line 19: Add comma to read as follows: …'piers, floats…' November 2013 Page 38 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 12 Article 7.2.G.3.vii 7-13 Boating Facilities – Marina Regulations None Proposed Clarification Line 31: Revise text to read as follows: …'Washington Department of Health guidelines and National Shellfish…' 13 Article 7.2.H.2 7-16 Boating Facilities – Mooring Buoy Regulations None Proposed Clarification Line 6: Revise text to read as follows: '…(NSSP) standards, and other state Departments…' 14 Article 7.2.H.8 7-16 Boating Facilities – Mooring Buoy Regulations None Proposed Clarification Line 23: Revise text to read as follows: ‘…no circumstances shall mooring buoy density exceed state Department of Health…' 15 Article 8.8.B.4 8-25 Residential – Uses & Activities Prohibited Outright None Proposed Clarification Line 28: Move 'or' to end of 4.iv. and capitalize 'Result' for 4.v. 16 Article 10.6.I.1.i 10-8 Non-conforming Development – Expansion/Enlar gement with a CUP None Proposed Clarification Line 28 - 29: Add text to read as follows: '…or the expansion/enlargement occurs vertically, laterally or landward, but not waterward, of the structure.' 17 Appendix A Maps #2,3 and 4 None Proposed Clarification Delete 'Old' to read 'Fort Townsend State Park 18 Article 2.A.4 2-1 Definitions – Accessory structure None Proposed Clarification Delete, add and reformat text to read as follows: ‘Garages, Boathouses, barns, decks, storage sheds…’ 19 Article 7.8.E.2.iv 7-32 Shore Armor – Regulations – New or Expanded None Proposed Clarification Revise text to read as follows: iv. When necessary to protect an existing, lawfully established primary water-oriented use , including a residence, but not including a boathouse or other accessory structure, that is in imminent danger of loss or substantial damage from erosion caused by tidal action, currents, or waves. November 2013 Page 39 of 48 FINAL Response to Ecology: Required and Recommended Changes ITEM LA-SMP Provision LA-SMP Page Topic Ecology’s Required or Recommended Change Jefferson County Response Changes to the Locally Approved SMP 20 Article 7.8.E.5.iii 7-33 Shore Armor – Regulations – New or Expanded None Proposed Clarification Add new item ‘iii’ to read as follows: ‘Be prepared by a licensed professional engineer or geologist or other qualified professional with appropriate credentials.’ 21 Article 8.2.D.2 8-5 Aquaculture – Regulations – General None Proposed Clarification Add text to read as follows: 1. Ongoing maintenance, harvest, replanting, restocking of, or changing the species cultivated in any existing or permitted aquaculture operation is not considered development, and shall not require a new substantial development permit (SDP), unless or until: 2. 22 Article 6.1.E.4 6-11 Critical Areas – Regulations - Buffer Exceptions – Water-oriented Use/Developme nt None Proposed Clarification Lines 17 – 2: Revise text to eliminate redundancy on to read as follows: iv. Public or private beach access structures accessory to residential, commercial, industrial, port or other allowed use/development; and v. Public access structures, including but not limited to docks, piers, and floats; and 23 Appendix A. Official Shoreline Map Maps #8, 9, 12 and 13 Map #8.North Port Ludlow, #9.Port Ludlow, #12. Shine, and #13 Paradise Bay; Marine Shoreline Reach DD None. Proposed Clarification Revise Maps #8, 9, 12 and 13 to change the section of Reach DD from the southern extent of the town homes (located north of Burner Point) to the northern extent of the Master Planned Resort from High Intensity (brown) to Shoreline Residential (blue) shoreline environment designation (SED). [Note: See draft revised maps attached] November 2013 Page 40 of 48 FINAL Response to Ecology: Required and Recommended Changes Jefferson County Rationale: Ecology’s Attachment B. Required Changes 1. County supports consistency with RCW and WAC provisions of the Ocean Resources Management Act. 2. County supports consistency with RCW and WAC provisions of the Ocean Resources Management Act. 3. County supports a change for consistency with RCW and WAC provisions of the Ocean Resources Management Act, and recommends the Priority Aquatic designation as more appropriate than Aquatic based on the protected status of National Marine Sanctuary and National Park coastal resources. 4. County supports most of the required revision, but excludes the ‘up to 3 cars’ threshold for garages because impervious surface requirements are adequately addressed in JCC 18.30.070. 5. County supports consistency with RCW and WAC provisions of the Ocean Resources Management Act 6. County supports the change to provide better alignment with Quinault Indian Nation Wilderness designation of Ocean Coast resources. 7. County supports a change to avoid confusion about jurisdictional aut hority and proposes alternate text revisions to improve clarity. 8. County supports the change to avoid confusion about jurisdictional authority . 9. Skipped as duplicate. 10. County supports the change to ensure exemption is appropriately applied. 11. County supports the change to ensure dock lengths are appropriate to a demonstrated need and to specific site conditions while ensuring adequate protection of shoreline resources. We recognize the utility of having dimensional standards and that this provision allows admin istrative adjustment. Further, should a situation deem it, the Shoreline Variance option could allow deviation from the standard if criteria are satisfied. 12. County supports the change to ensure provision is not misconstrued. 13. Finfish aquaculture includes both in-water and upland facilities. Jefferson County proposes to allow new finfish aquaculture use/development with a discretionary conditional use permit, with some differentiation between the regulation of upland and in-water facilities. Review of proposals for conditional discretionary uses are subject to specific criteria and performance standards, public notice, written public comment, and at the discretion of the Shoreline Administrator, an optional public hearing procedure determined by the project’s potential impacts, size or complexity in compliance with the Jefferson County Code, Chapter 18.40, Section 520 (JCC 18.40.520). This Type III quasi-judicial permit review process also includes review by Washington Department of Ecology as the state’s legislative authority for shoreline management, and final decision by a Hearing Examiner. Upland finfish aquaculture use/development would be allowed with a discretionary conditional use permit limited to the Aquatic, Conservancy and High Intensity shoreline designations. The limitation to Conservancy and High Intensity designations is appropriate given such industrial use of natural resources is not compatible in Natural designated areas with significantly intact shoreline functions and processes or in Shoreline Residential designated areas with higher densities of single family residential use/development (Rural Residential 1:5, Urban Growth Area, Master Planned Resort, and/or pre-existing platted subdivisions with density equivalent/greater to such) where the risk of conflict between incompatible uses is greatest. This limited allowance recognizes that an upland operation may require water intake and discharge components located waterward of the ordinary high water mark (OHWM) and allows such in the Aquatic shoreline designations only. In-water finfish aquaculture use/development, including net pens and floating contained systems, is also proposed to be allowed with a discretionary conditional use permit. The use would be limited to the Aquatic shoreline designation and allowed only 1) when adjacent to High Intensity shoreline designation, or 2) when adjacent to a shoreline designated as Natural provided more than eight (8) miles of November 2013 Page 41 of 48 FINAL Response to Ecology: Required and Recommended Changes County jurisdiction extends seaward from the shore, such as in the Stra it of Juan de Fuca. Other areas where the Natural designation is proposed are constrained by limited in-water area adjacent to the Aquatic designation making then unsuitable for such intensive industrial in-water operations. The limitation to High Intensity and one Natural designated area is consistent with the Aquaculture Siting Study (EDAW/Ecology; 1986) site selection guidance to “Avoid sites offshore of existing suburban residential development” Several geographic limitations would also apply to ensure protection of sensitive habitat areas and areas with degraded water quality. In-water finfish aquaculture would be prohibited in the following areas:  Protection Island Aquatic Reserve;  Smith & Minor Islands Aquatic Reserve;  Discovery Bay;  South Port Townsend Bay; and  Hood Canal, south of the line extending from Tala Point to Foulweather Bluff, including Dabob and Tarboo Bays. Further, all proposals for new in-water finfish aquaculture use/development would need to meet the detailed performance standards for siting and operations, including but not limited to topics such as:  Site surveys and Monitoring;  Facility Operations Plan;  Insurance Coverage;  Bottom Sediments and Benthos;  Water Quality;  Phytoplankton;  Chemicals;  Food fish and Shellfish;  Importation of New Fish Species;  Genetic Issues;  Escapement and Disease;  Visual Quality;  Navigation, Military Operations and Commercial Fishing;  Human Health;  Recreation;  Noise;  Odor;  Lighting and Glare;  Upland Shoreline Use; and  Local Services. The County recognizes a complete prohibition of a water-dependent, preferred shoreline use may make the County vulnerable to a legal challenge. Instead the County proposes to allow the use only in appropriate areas in order to ensure no net loss of shoreline resources and to minimize use conflicts that result from incompatible activities in close proximity. This approach will provide appropriate shoreline locations where this intensive industrial agricultural use can occur while 1) ensuring adequate protection of nearshore habitat such as marine riparian and submerged aquatic vegetation, benthic communities, and migration corridors for endangered salmonids, and 2) minimizing the potential for use conflicts anticipated along most Natural, Conservancy, and Shoreline Residential designated shorelines. The specific performance standards made part of this SMP are consistent with state guidance on finfish aquaculture use/development with respect to siting, use conflicts, and environmental impacts. Rationale for some specific provisions of particular interest to Ecology follows: Article 8.1 Agriculture – As a courtesy to the reader, the provisions clarify that while upland finfish aquaculture is recognized as a type of agricultural use/development it November 2013 Page 42 of 48 FINAL Response to Ecology: Required and Recommended Changes is to be managed by the more specific aquaculture policies and regulations of the Program. This is based on:  The term ‘upland finfish’ being included in definitions for ‘agricultural products’ and ‘agricultural equipment/facilities’ in the Shoreline Management Act (SMA) at RCW 90.58.065(2)(b) and (c) and the Shoreline Master Program (SMP) Guidelines at WAC 173-26-020(3)(b) and (c);  SMP Guidelines WAC 173-26-191(1)(e) requirement for consistency with State Growth Management Act (GMA) comprehensive planning;  GMA definition for ‘agricultural lands’ includes ‘finfish in upland hatcheries’;  The Jefferson County Comprehensive Plan, Natural Resource Conservation Element (Chapter 4) includes Aquaculture Lands and resources, specifically shellfish and upland finfish aquaculture. Net pens are specifically identified as ‘not resource lands’ to be regulated under the SMP.  The overarching principle of regulatory law that if two sets of regulations might be applicable to a particular use or activity, then the more specifc ones should be applied. Limited Allowance in Natural Designation - The provisions allow in-water finfish aquaculture use/development to locate adjacent to Natural designated areas only when the County’s jurisdiction extends ‘a considerable distance’/’eight (8) miles’ from shore, as subject to the other applicable provisions. Generally, Natural designated areas are not suitable for in-water finfish aquaculture because they contain the most intact and sensitive shoreline resources, however the County is aware that the Strait of Juan de Fuca is an area of interest to the industry and Ecology. In order to 1) protect all other Natural designated areas located elsewhere in the County where offshore distances of jurisdiction are constrained, 2) be responsive to the industry and Ecology, and 3) minimize the risk of legal challenge, the County has included this allowance (subject to other applicable provisions). Doing so opens up a 42.9 square mile area in the Strait of Juan de Fuca for possible siting; this is in addition to the other possible siting areas: Glen Cove (0.5 square miles), Mats Mats Bay (1.2 square miles - outside the bay only), and Port Ludlow Bay (0.04 square miles). The Program clarifies that facilities are not required to locate eight (8) miles offshore but that other provisions establish siting requirements (typically 1,500 to 2,000 feet offshore). Further a set of supplemental maps are included with this document to show the approximate areas where in-water finfish aquaculture use/development might be proposed to locate based on shoreline environment designations (SEDs). Siting Distance Requirements – Several provisions address siting distance based on specific state guidance documents, including:  Article 8.2.B(1)(a) and (b) prohibits in-water finfish aquaculture facilities within 1,500’ of the Protection Island Aquatic Reserve and Smith and Minor Island Aquatic Reserve (Source: 1986 Interim Guidelines and 1990 Final Programmatic EIS);  Article 8.2.D.5(viii) requires in-water finfish aquaculture use/development to locate at least 1,500’ from any National Wildlife Refuge, seal and sea lion haulouts, seabird nesting colonies, or other areas identified as critical feeding or migration areas for birds and mammals. County may allow a lesser distance with approval from federal/state agencies (Source: 1986 Interim Guidelines and 1990 Final Programmatic EIS);  Article 8.2.E.7(a) requires in-water finfish aquaculture facilities to locate (i) at least 300’ in all directions from any wildlife refuge, sanctuary, aquatic reserve or similar are intended to protect threatened or endangered species in order to avoid adverse impacts to habitats of special significance and populations of food fish and shellfish; (ii) in shallow water less than 75’ deep at least 300 feet down- current and 150 feet in all other directions from significant habitats; and (iii) in water deeper than 75’ at least 150 feet from significant habitat (Source: 1986 Interim Guidelines and 1990 Final Programmatic EIS); November 2013 Page 43 of 48 FINAL Response to Ecology: Required and Recommended Changes  Article 8.2.E.11(a) requires in-water finfish aquaculture facilities to locate a minimum of 1,500’ from habitats of special significance for marine mammals and seabirds (Source: 1986 Interim Guidelines and 1990 Final Programmatic EIS);  Article 8.2.E.12(a)(ii) requires in-water finfish aquaculture facilities to locate a minimum of 1,500 feet from ordinary high water mark, or a minimum of 2,000 feet when higher density residential development is present along the adjacent upland. The County may require a greater distance as determined by a visual impact assessment (Source: 1986 Aquaculture Siting Study and 1990 Final Programmatic EIS);  Article 8.2.E.15(b) requires in-water finfish aquaculture facilities to locate a minimum of 1,000 feet from any recreational shellfish beach, public tidelands , public access facilities (e.g. docks or boat ramps) or other areas of extensive or established recreational use (1988 Use Conflicts Study and 1990 Final Programmatic EIS). Habitat of Special Significance vs. Critical Habitat – Two definitions are provided in Article 2 for terms that are similar: C.26 Critical Habitat and H.2 Habitat of Special Significance. While based on difference sources, the terms are intended to be interchangeable in practice. The definition for ‘habitat of special significance’ c omes from the Recommended Interim Guidelines for the Management of Salmon Net Pen Culture in Puget Sound (SAIC/Ecology; 1986), specifically from Table 1 on page 4 and Table 3 on page 18 of the document. The definition for ‘critical habitat’ reflects 1) the more recent GMA requirements for protection of environmentally sensitive “critical areas” (such as ‘fish & wildlife habitat conservation areas’, 2) the 1973 federal Endangered Species Act critical habitat for listed species, and 3) the Washington Department of Fish & Wildlife’s WAC-listed species and Priority Habitats and Species Program. As the County has relied on the 1986 Interim Guidelines document and the subsequent Final Programmatic Environmental Impact Statement (EIS) for Fish Culture in Floating Net Pens (Parametrix/WA Dept. Fisheries; 1990) there is hesitation to insert the term from the more current GMA/ESA/PHS sources into provisions that come out of the older Interim Guidelines and EIS. In terms of implementing the provisions of the SMP that use these terms, the County does not anticipate the applicability will be compromised. When a provision uses one term and there is uncertainty regarding how it applies to a specific application/proposal, the definition for the term used would be relied u pon, and if that did not clarify, then the definition for the second or alternate/interchangeable term would be relied upon. If, in the situation where neither definition adequately clarifies, the County would consult with professionals from appropriate natural resource agencies (i.e. WDFW, WDNR, USFWS, etc.). Note that when the term ‘habitat of special significance’ is used in provisions E.7 and E.11 the term is further narrowed by including additional text “of food fish and shellfish” or “for marine mam mals and seabirds” so the provision applies to a subset of the term ‘habitat of special significance’ not broadly to every interpretation thereof. Prohibition in Shoreline Residential Designation vs. WAC Guidelines – Simply put, the County’s reasoning for this prohibition is that 1) state guidance documents about siting finfish aquaculture recommend avoiding dense residential areas, and 2) public sentiment reflected in the Comprehensive Plan does not regard net pens as a natural resource industry meriting protection as locally significant for long-term commercial/recreational values. The SMP Guidelines at WAC 173-26-211(5)(f) regarding the Shoreline Residential environment designation suggest water-oriented commercial use/development such as finfish aquaculture should be limited in areas intended to accommodate residential development, appurtenant structures, public access and recreational uses. The County considered this guidance in deliberating the issue of visual/aesthetic impacts along with technical information from documents including the Aquaculture Siting Study (EDAW/Ecology; 1986) and Use Conflicts and Floating Aquaculture in Puget Sound (Boyce/Ecology; 1988). November 2013 Page 44 of 48 FINAL Response to Ecology: Required and Recommended Changes The County also considered the strong public sentiment that many shoreline homeowners, especially those on parcels zoned Rural Residential with one unit per 5 acres (RR 1:5), do not want any finfish aquaculture ‘next door’ or in their ‘front yard’ because of the likelihood of significant visual, aesthetic, odor and noise impacts. Therefore, to minimize conflict between incompatible uses, all finfish aquaculture (both in-water and upland) use/development is prohibited in Shoreline Residential designated shorelines in Jefferson County. Note that as a rural community, not all shorelines along residentially-zoned parcels have been designated Shoreline Residential. Most shoreline areas with RR 1:10 and RR 1:20 zoning are mostly designated as Conservancy where in-water finfish aquaculture would be prohibited and upland finfish aquaculture would be allowed with a discretionary CUP. The lower residential densities in such areas reduce the potential for conflict between incompatible uses. Further, the Jefferson County Comprehensive Plan clearly identifies the importance of natural resource lands (including aquaculture lands) to the rural character and economic vitality of our community and the need for compatibility between natural resources and other adjacent uses. These broad community values are reflected in numerous Land Use and Rural Goals and Policies, including but not limited to:  LNP 12.2 (pg. 3-58) Natural resource-based industries may be located near the agricultural, forest, mineral, or aquaculture resource lands upon which they are dependent.  LNP 13.3 (pg. 3-59) Work with resource-based industries to achieve compliance with all applicable regulations to protect environmental values and to protect surrounding land uses.  LNP13.4 (pg. 3-59) Ensure that land use activities adjacent to resource lands are sited and designed to minimize conflicts with resource management activities.  LNG 19.0 (pg. 3-62) Ensure that development is accomplished in a manner which protects the long-term habitability, historically significant areas and natural beauty of Jefferson County.  LNG 21.0 (pg 3-63) Encourage residential land use and development intensities that protect the character of rural areas, avoid interference with resource land uses, and minimize impacts upon environmentally sensitive areas.  LNP 22.2 (pg. 3-64) Foster sustainable natural resource-based industry in rural areas through the conservation of forest lands, agricultural lands, mineral lands, and aquaculture lands in order to provide economic and employment opportunities that are consistent with rural character.  Aquaculture Resources - (pgs. 4-11 & 12) Classification and Designation of Aquaculture Resources …Although the Growth Management Act does not specifically include aquaculture lands as natural resource lands requiring protection and conservation, Jefferson County has elected to do so in recognition of the importance of commercial aquaculture to the local and regional economy… The following aquaculture resources are designated as Agricultural Lands of Long-Term Commercial Significance in accordance with the classification and designation of Agricultural Land as discussed above: o Upland finfish hatcheries; and, o Commercial shellfish beds and their upland facilities.  Land Use Compatibility Strategies B.11 Adopt guidelines and standards for Aquaculture Best Management Practices; and B.12 Support the Right -to-Practice Aquaculture provision of the Interim Agricultural Lands Ordinance as adopted in the final ordinance through a process that includes notice to title for adjacent property owners. Other measures may include: • Encouraging owners of shellfish beds not designated as long-term commercially significant to participate in the Agricultural Lands of Local Significance Program; • Designating new upland finfish hatcheries as Agricultural Lands of Long-Term Commercial Significance; • Classifying drainage basins of aquaculture lands where the landowners undertake conservation measures as providing a public benefit in the Open Space Tax program ; and, • Protecting fish and shellfish habitat areas from incompatible adjacent uses. There is a common theme that other use/development (such as residential) should accommodate and be adaptive to avoid conflict with natural resource use/development. November 2013 Page 45 of 48 FINAL Response to Ecology: Required and Recommended Changes However, even with this clear support for aquaculture, the Comp Plan makes clear that the community sees a distinct difference between types of aquaculture use/development with commercial shellfish beds/facilities and upland finfish hatcheries as strongly supported, but not including net pens (in -water finfish aquaculture) in the same category. This is made evident by Aquaculture Resources Policy:  NRP 11.6 (pg 4-40) Net pens, which are not designated resource lands, shall be regulated under the Shoreline Management Master Program under regulations for aquaculture activities. Such regulations will be updated during the SMMP revision for consistency with the Comprehensive Plan. The Plan will then be amended to incorporate the SMMP as an element of the Comprehensive Plan. Until the revised SMMP is adopted, where a regulatory provision is inconsistent with other County ordinances, the more restrictive provision shall apply. Also evident is the importance of protecting the beauty and aesthetic amenities afforded by the natural resources of the area as reflected by the following Comp Plan goals and policies:  LNG 18.0 (pg 3-61) Preserve rural character and promote rural lifestyle. Rural character is defined by local rural lifestyle, opportunity to live and work in rural areas, local rural visual landscapes, resource productivity, environmental qualit y, and significant areas of open space; and  LNG 19.0 (pg. 3-62) Ensure that development is accomplished in a manner which protects the long-term habitability, historically significant areas and natural beauty of Jefferson County. In conclusion, prohibiting water-oriented commercial use/development finfish aquaculture from Shoreline Residential designated areas, and treating in -water finfish aquaculture differently than other types of aquaculture use/development in Jefferson County is consistent with public sentiment and supported by the goals and policies embodied in the Comprehensive Plan. Implementation of Visual Impacts Requirements – Article 8.2.D.6 (General Regulations for all aquaculture) requires a ‘visual analysis’ for all floating/hanging aquaculture and bottom culture with structures and Article 8.2.E.12 (Finfish Regulations – Visual Quality) requires a Visual Impacts Assessment for eight siting and design variables identified by the 1986 Aquaculture Siting Study. The County relies on the methodology described therein, per Finfish Regulation E.1 that references ‘state approved administrative guidelines’ collectively referring to the above mentioned studies/reports. This methodology includes technical terminology such as ‘angle of viewing’, ‘plane of water’, ‘normal cone of vision’, ‘foreshortening’. The County does not employ staff with expertise in visual impacts analysis so, for the purpose of administering these provisions, the County would rely on experts retained by the applicant, professional input from state/federal resource management agencies, and, as needed, third party review by hired consultants. Distinction Between Commercial Net Pens vs. Restoration/Enhancement Efforts – The County strongly supports restoration and enhancement efforts aimed at recovery of native salmon stocks in the Puget Sound region. In considering the definition for ‘in-water finfish aquaculture’ the County clarifies that any use/development with fish rearing structures in the water that meets the definition of ‘watershed restoration project’ per RCW 89.08.460 is not considered ‘in-water finfish aquaculture’. The County relies on existing statutory definitions for activities that are ‘primarily designed to… enhance the fishery resource available for use by all of the citizens of the state,’ and that are part of an authorized ‘watershed restoration plan’ developed/sponsored by state or federal agencies, tribes, local jurisdictions or conservation districts that has undergone SEPA and public review. Such use/development would be reviewed under the Article 7.7 Restoration provisions and other applicable sections of the Program (e.g. Article 6.1.B No Net Loss and Mitigation), along with SEPA, and require a Hydraulic Project Approval from WDFW. November 2013 Page 46 of 48 FINAL Response to Ecology: Required and Recommended Changes The County recognizes many public concerns still exist regarding the risks and potential impacts related to in-water finfish aquaculture, such as:  Biodeposits – food and feces;  Chemical Use - pesticides, pharmaceuticals, etc;  Disease - bacteria, viruses;  Parasites - sea lice;  Escapement - GMOs, breed/compete with natives; and  Impacts to Puget Sound – low dissolved oxygen, shellfish beds, forage fish, kelp & eelgrass, mammals, ongoing restoration efforts. That all risks or possible risks related to in-water finfish aquaculture cannot be eliminated or remedied is not sufficient reason to adopt a Master Program which includes a prohibition on in-water finfish aquaculture because such a use is a preferred use in the regulatory scheme established by the SMA. However, the County has conducted additional review of available technical information and consulted with experts in the fields of fish health, water quality permitting, escapement and genetics, and commercial and enhancement net pen operations. This further consideration of the complex issues related to in-water finfish aquaculture has allowed the County to conclude that such a limited allowance with reliance on the existing regulatory requirements of multiple state and federal agencies is a reasonable and adequate approach to striking a balance between outright prohibition and across the board allowance. Arising from Ecology’s response, the County conducted further investigation in greater detail of available science in support of and opposition to finfish aquaculture, with special focus on in-water operations such as net pens. The Finfish Bibliography includes some 125 documents including peer-reviewed journal articles, state and federal agency policy and technical guidance, permit samples from existing Puget Sound net pen operations, Shoreline Master Programs from other Puget Sound jurisdictions, a programmatic EIS document and other sources of pertinent information. The Bibliography includes documentation submitted during formal public comment and constitutes a representative sample of the available science. The Bibliography contains recently published “current” science such as the February 2011 report of Michael Price et al. on juvenile salmon runs. Recent correspondence from Ecology to the Northwest Straits Commission (September 2011) clarifies that the state relies primarily on key documents such as the 1986 Aquaculture Siting Study and Guidelines, and the 2002 NOAA Technical Memo #53. The County has considered these same sources of information and others from that era (i.e. 1988 Use Conflicts Study; 1990 Final Programmatic EIS; 2001 NOAA Technical Memo #49), but also relies on more current science from the 2003 – 2011 era. The statute requires that the SMP balance appropriate shoreline activities with adequate protection of the resources. The SMP Guidelines (WAC 173-26-186) require that shoreline use and development is regulated to ensure “no net loss of ecological functions”. Further, the Guidelines (WAC 173-26-201(3)(g)) require that when less is known the SMP take a more protective approach to avoid unanticipated impacts and to reasonably assure that shoreline resources are protected. The current science is inconsistent. Therefore, the County concludes it has no choice but to err at this time on the side of caution and protection while determining which locations would be suitable for this preferred use. The County believes the science dictates that in-water finfish aquaculture, including net pens, must be limited. The County proposes to modify the Locally Approved SMP as indicated in this document to include these provisions as a matter of legislative discretion and after a “reasoned, objective evaluation of the relative merits of the conflicting data” collected by this County as is allowed per WAC 173-26-201(2)(a)(iii). 14. See #13 above. November 2013 Page 47 of 48 FINAL Response to Ecology: Required and Recommended Changes 14. See #13 above. 15. County supports a change for consistency with WAC requirements and proposes alternate text revisions to improve clarity. 16. County supports a change for consistency with WAC requirements and proposes alternate text revisions to improve clarity. 17. County supports the change to ensure provision is not misconstrued. 18. County supports the change to ensure document consistency between non -water oriented commercial and recreational uses and with the purpose and criteria for the Shoreline Residential environment designation. 19. County supports the change for consistency with WAC requirements. 20. Skipped as duplicate. 21. County supports the change for consistency with RCW requirements where dollar amounts are periodically adjusted. 22. County supports the change to avoid confusion about jurisdictional authority . 23. County supports the change to ensure consistency with statewide policy on non - conforming uses. 24. County proposes to maintain a 300’ separation for this provision because it is already limited for view purposes and only allowed on non-conforming lots. Cumulative Impacts Analysis shows that some 750 of the approximately 6,200 shoreline parcels will become non-conforming to the new buffers making this provision applicable to just 12% of the parcels, or ~3% of the land area. Further, of the parcels anticipated to become non-conforming, only some 225 (30%) are vacant leaving the provision most likely used on a mere 4% of all shoreline parcels or ~1% of the land area. Given the limited applicability of this provision, the County affirms the 300’ separation is appropriate. 25. County supports the change to ensure consistency with state policy guidance. Ecology’s Attachment C. Recommended Changes 1. County supports the change to assuage Quinault Indian Nation concerns about conflict resolution. 2. County declines the change because buffer depth does not depend on presence/absence of a structure. 3. County supports the change to include internal referencing for better clarity. 4. County declines the change because frontage setback is measured from road or adjacent parcel, not from OHWM. A related issue is addressed in Recommended Change #6. 5. County supports a change for clarity and proposes alternate text revisions to improve clarity between related terms, internal consistency, and consistency with similar terms used in the Jefferson County Code. 6. County supports a change for clarity and proposes alternate text revisions to improve clarity and internal consistency between definitions and regulatory provisions. 7. County supports the change for clarity. 8. County supports the change and will add the appropriate date as soon as possible. 9. County supports the change to eliminate text redundancy and to correct grammatical error. A related issue is addressed in Proposed Clarification #9. 10. County supports a change for clarity and proposes alternate text revisions for clarity. 11. County supports the change for clarity. 12. County supports a change for clarity and proposes alternate text revisions for clarity. 13. County supports the change for accuracy. 14. County supports a change for clarity and proposes alternate text revisions for better consistency with RCW requirements. Additional Jefferson County Revisions Proposed for Clarification 1. County proposes text revision to further specify intent for vesting. 2. County proposes text revision to further specify intent for vesting. 3. Typographical error (Typo) 4. Typo 5. County proposes text revision for clarity. November 2013 Page 48 of 48 FINAL Response to Ecology: Required and Recommended Changes 6. County proposes text revision for clarity. 7. County proposes text revision for accuracy. 8. County proposes text revision for accuracy. 9. County proposes text revision for clarity. New definition is consistent with WAC 222-16-010 Forest Practices Board. 10. County proposes formatting revision for internal consistency. 11. Typo 12. Typo 13. Typo 14. County proposes text revision for clarity and for consistency with RCW requirements. 15. County proposes formatting revision for accuracy. 16. County proposes text revision for clarity. 17. County proposes text revision for accuracy. 18. County proposes text revision for internal consistency. 19. County proposes text revision for clarity. 20. County proposes text revision for clarity and internal consistency. 21. County proposes text revision for clarity. 22. County proposes text revision to eliminate redundancy and for clarity. 23. County proposes to revise Official Shoreline Map to more accurately apply the purpose and criteria for shoreline environment designations (SEDs).