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Home My WebLink About44 2017-04-21op co JEFFERSON COUNTY 1 DEPARTMENT OF COMMUNITY DEVELOPMENT 621 Sheridan Street, Port Townsend,WA 98368 I Web:www.co.iefferson.wa.us/communitydevelooment ti o Tel:360.379.4450 I Fax:360.379.4451 I Email:dcdaco.iefferson.wa.us SquareONE Resource Center I Building Permits & Inspections I Development Review I Long Range Planning April 21, 2017 Brad Nelson BDN, LLC 3011 S. Chandler St. Tacoma, Washington, 98409 Robert M. Smith Plauche & Carr, LLP 811 First Avenue, Suite 630 Suite 630 Seattle, Washington 98104 RE: BDN Shine Road Geoduck Aquaculture Farm — Shoreline Conditional Use PermitRequirement Dear Mr. Nelson and Mr. Smith: This letter responds in part to Mr. Smith's letter to me dated March 29, 2017. In addition, this letter clarifies whether a shoreline conditional use permit under Jefferson County's updated ShorelineMasterProgramapprovedFebruary2014 (the SMP) is required for new Geoduck aquaculture proposed by BDN, LLC (BDN). As you know, there has been significant interest by local residents in your proposed geoduck operations. Jefferson County (the County) has reviewed additional information provided by Mr. Smith and by Marilyn Showalter, a local Shine Road resident, including: Various correspondence from the United States Army Corps of Engineers (Army Corps)provided both by Mr. Smith and Ms. Showalter; Emails between the Army Corps and Mr. Smith; Army Corps Project Logs; The Army Corps Agenda with Notes of its Meeting with BDN on November 12, 2015; and, Case law provided by Mr. Smith and Ms. Showalter on whether the vested rights doctrine applies to three Joint Aquatic Resources Permit Applications (JARPAs)provided to the Countyin2013, before the SMP was adopted. For the reasons discussed below, a shoreline permit is required for any geoduck farmingoperationsthatwerenotalreadyunderwayasofFebruary21, 2014 or have been expanded impermissibly since February 21, 2014. The County understands that no geoduck farmingLOG ITEM Page, 1 pf____ u-w 2 operations were underway by February 21, 2014 for the following parcels: the Garten Parcelsi 821334074, 821334075, and 821334076) and the Tjemsland Parcell (821334078) and the Smersh Parcel (parcel number 721031007).3 The County understands there is no current Army Corps permit for the Garten and Tjemsland parcels. Nevertheless, because these parcels are for geoduck farming operations that were not already underway before the SMP was adopted, a permit under the County's SMP will be required before BDN can begin geoduck farming. The County understands there is an approved Army Corps permit for the Smersh Parcel. However, state law under the Shoreline Management Act and the Department of Ecology guidelines that mandated the changes to the SMP 2014 controls, and a separate conditional use permit under the SMP must be obtained before geoduck operations can begin. The County understands that some geoduck farming operations were ongoing as of February 21, 2014 on the following parcels now owned by BDN: Parcels 821334011, 821334073 and 821334079. A SMP permit is required if the pre-SMP scope has increased sufficiently to require a new permit per Jefferson County Code ("JCC") 18.25.440(4)(b)(ii). Expanded pre-SMP operations require a SMP conditional use permit if: (1) the physical extent of these prior geoduck farming operations has expanded by more than 25 percent or more than 25 percent of the facility/farm changes operational/cultivation methods compared to the conditions that existed as ofthe effective date of SMP; or, (2)the expansion or change in cultivation method exceeds 25 percent in any 10-year period. JCC 18.25.440(4)(b)(i). However, if the existing geoduck farming operations have not expanded beyond these limits, a shoreline conditional use permit is not required. The vested rights doctrine does not apply to permits required by the SMP, even if the JARPAs provided to the County in 2013 were complete. By statute, the Washington vested rights doctrine applies only to building permits, subdivision applications, and development agreements filed with a local jurisdiction such as a county or municipality. One of the cases cited in Mr. Smith's letter makes that clear. See the Washington Supreme Court's 2016 decision in Snohomish County vs. Pollution Control Hearings Board, page 358. BDN never filed a building permit, subdivision application, or development agreement with the County. In addition, a building permit, subdivision application, or development agreement cannot be obtained with a JARPA application. BDN's only submissions to the County were the JARPAs it sent to the County in 2013. JARPA applications can be used to obtain permits under the County's SMP, but that is not what BDN's JARPAs requested. JARPAs filed before the SMP was approved on February 21, 2014 do not provide a basis for failing to comply with the requirements ofthe SMP. That is because changes in the SMP were mandated by the Washington Legislature in the Shoreline Management Act and the Washington Department of Ecology in the guidelines it promulgated pursuant to the Shoreline Management Act. In other words, JARPA applications filed before the SMP are not subject to Washington's vested rights doctrine. An application for a permit under the SMP is i Army Corps reference number NWS-2013-1223. 2 Army Corps reference number NWS-2013-1147. 3 Army Corps reference number NWS 2013-1268. LOG ITEC. 21 Page 2 of 4 11 3 required, even though the SMP was approved after BDN's 2013 JARPAs were provided to the County. The County realizes this position is different from the County's position taken prior to the Washington Supreme Court's 2016 decision in Snohomish County vs. Pollution Control Hearings Board. However, it is now clear that the vested rights doctrine cannot apply because the SMP is a requirement of the Shoreline Management Act and the Department of Ecology's guidelines. Furthermore, it is now clear that the BDN must comply with the requirements of theSMP. The County will apply all the SMP requirements and in particular, those for aquaculture contained in the JCC 18.25.440. The County understands that"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." JCC 18.24.440(a). Under the SMP, even in Shoreline Residential areas, "Geoduck aquaculture maybeallowedwithaconditionalusepermit(C(d))." JCC 18.24.440(e). Under the SMP, the County has the authority to require BDN "to prepare special studies, assessments and analyses as necessary to identify and address cumulative impacts including, but not limited to, impacts on fish and wildlife habitat, public access/use, aesthetics, and other shoreline attributes." JCC 18.25.440(3)(b). Please begin the submittal process for a shoreline conditional use permit as outlined in this letter prior to undertaking any new aquaculture activities. Attached is the pre-application conference form. The JARPAs provided to the County in 2013 are not sufficient and do not result in vested rights to BDN. However, no shoreline conditional use permit is required for BDN's geoduck farming operations on parcels where there was geoduck farming before February 21, 2014, provided the pre-SMP scope has not increased sufficiently to require a new permit, as discussed above. See JCC 18.25.440(4)(b)(ii). If you have any questions or need additional information, please let us know. We look forward to working with you during the permitting process. Sincerely, 441L-iy Al."fir David Greetham Planning Manager Cc: DCD Director County Administrator Attachment LOG ITEiv1 3L Page 3 vi4