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Home My WebLink About2020 06 12 Mauney Code Interpretation FINALJEFFERSON COUNTY DEPARTMENT OF COMMUNITY DEVELOPMENT 621 Sheridan Street | Port Townsend, WA 98368 360-379-4450 | email: dcd@co.jefferson.wa.us www.co.jefferson.wa.us/commdevelopment Code Interpretation – Mauney/Rogerson Trust Short Plat - June 12, 2020 Page 1 of 7 Date: June 12, 2020 Issued by: Linda Paralez, Interim Director, Interim Unified Development Code Administrator, Department of Community Development (DCD) Affected: All Properties Within the Mauney/Rogerson Trust Short Plat, SUB12- 00011/MLA12-00141, Jefferson County Parcel ID Nos. 921094035, 921094036, and 921094037. Subject: Unified Development Code Interpretation – Jurisdictional Determination of an Associated Wetland (Shoreland) and Applicable Critical Area Setback under the Jefferson County Shoreline Master Program Summary of the Code Interpretation: On April 22, 2020, the Jefferson County Department of Community Development (“DCD”) received communication from a property owner’s counsel regarding a critical area wetland buffer within the Mauney/Rogerson Trust Short Plat, SUB12-0001/MLA12-00141 (“Short Plat”). The issue presented in the April 22, 2020 letter was whether the 60-foot critical area wetland buffer depicted on the Short Plat applied to future development within the Short Plat or if the Critical Area Ordinance (“CAO”) currently in effect requires a different critical area wetland buffer. After further review of the issue, DCD issues this Unified Development Code Interpretation (“Code Interpretation”) on its own initiative, pursuant to JCC 18.40.350, JCC 18.40.350, JCC 18.25.610(1)(g), and JCC 18.25.200(5)(d) determining that the Jefferson County Shoreline Master Program (“SMP”) incorporates by reference the CAO, that the wetland depicted in the Short Plat is an associated wetland under the SMP, that the associated wetland is jurisdictional under the SMP as shorelands, and that the current SMP recognizes and applies the 60-foot critical area wetland buffer depicted on the Short Plat to future development. Analysis: 1. The Shoreline Master Program Extends Jurisdiction to Include Lands Necessary for Critical Area Buffers. Generally, when a critical area lies partly within SMP jurisdiction, the SMP extends its shoreline jurisdiction to include the entire critical area and all lands necessary for buffers as shorelands. See RCW 90.58.030(2)(d)(ii); JCC 18.25.200; JCC 18.25.270(4); JCC 18.25.100(19)(m); and JCC 18.25.100(19)(q). The SMP incorporates the CAO by reference. JCC 18.25.060; JCC Code Interpretation – Mauney/Rogerson Trust Short Plat - June 12, 2020 Page 2 of 7 18.25.270(4)(a). Under JCC 18.25.270(4)(a), the individual circumstances of the critical area will determine the extent that the CAO or SMP regulations appl y to that critical area. JCC 18.25.270(4)(a)(i). In summary, when critical areas are jurisdictional under the SMP, both the SMP and the CAO work together to develop regulations for the critical areas and their buffers. 2. Associated Wetlands are Jurisdictional and Jurisdiction is Usually Asserted on a Case- by-Case Basis. The official shoreline map is for planning purposes only. It does not necessarily identify or depict the precise lateral extent of shoreline jurisdiction or all associated wetlands. The lateral extent of the shoreline jurisdiction at the parcel level shall be determined on a case-by-case basis at the time a shoreline development is proposed. The actual extent of shoreline jurisdiction requires a site-specific evaluation to identify the location of the ordinary high-water mark and any associated wetlands. JCC 18.25.200(2). The wetland depicted on the Short Plat is mapped as being partially within 200-feet of the shoreline’s ordinary high-water mark. Below in Figure 1, the traditional 200-foot shoreline jurisdiction is depicted as the orange line and the wetland is depicted as the blue shaded area. Figure 1 – Wetland and Shoreline Mapping Source: Jefferson County Geographic Information Systems. Note these are approximate locations. Code Interpretation – Mauney/Rogerson Trust Short Plat - June 12, 2020 Page 3 of 7 Under JCC 18.25.200(2), the Unified Development Code Administrator must determine whether the wetland is an associated wetland on a case-by-case basis if the entire wetland does not lie within 200-feet of the shoreline’s ordinary high water mark. See JCC 18.25.100(19)(q); JCC 18.25.100(19)(m). 3. The Wetland Depicted in the Short Plat is an Associated Wetland and Jurisdictional Under the SMP. An associated wetland is defined as: Wetlands that are in proximity to tidal waters, lakes, rivers or streams that are subject to the Shoreline Management Act and either influence or are influenced by such waters. Factors used to determine proximity and influence include but are not limited to: location contiguous to a shoreline waterbody, formation by tidally influenced geohydraulic processes, presence of a surface connection including through a culvert or tide gate, location in part or whole within the 100-year floodplain of a shoreline, periodic inundation, and/or hydraulic continuity. JCC 18.25.100(1)(hh). (emphasis added). See also WAC 173-22-030. The Washington State Department of Ecology’s SMP Handbook, which is interpretative agency guidance states the following on the jurisdiction of associated wetlands: The entire wetland or natural river delta is ‘associated’ if any part of it lies within the area 200 feet from the ordinary high water mark or within the floodplain landward 200 feet of the floodway, including wetlands that extend above, or upstream of, the 20cfs point. From an ecological standpoint, it makes sense to manage a wetland as a single system. Washington State Department of Ecology, Shoreline Master Programs Handbook, Ch. 5 pg. 24 (October 2017) available at https://fortress.wa.gov/ecy/publications/parts/1106010part5.pdf. (emphasis added). As depicted above in Figure 1, the wetland at issue is located partially within 200-feet of the shoreline’s ordinary high-water mark. Therefore, it must be determined if the wetland is an associated wetland under JCC 18.25.100(1)(hh) and whether it is jurisdictional as a shoreland. Below is an analysis of the proximity and influence factors which determine whether the wetland is associated and whether it is jurisdictional: a. The Wetland is Contiguous to a Shoreline Waterbody. The wetland at issue is contiguous to a shoreline waterbody. See Figure 1. The wetland begins upland, slopes downward, and continues to the shoreline. Id. The shoreline at issue is the Admiralty Inlet and is a shoreline of the state. Figure 2. Code Interpretation – Mauney/Rogerson Trust Short Plat - June 12, 2020 Page 4 of 7 Figure 2 – Short Plat Source: Jefferson County Official Records b. There is the Presence of a Surface Connection from the Wetland to the Shoreline. As depicted in Figure 2, there is a surface connection, a drainage ditch, between the wetland and the shoreline. The drainage ditch at issue runs through the wetland and connects it with the shoreline. Figure 3, below, which is a recent shoreline aerial photo depicts the drainage ditch with the presence of green vegetation directly connecting the wetland to the shoreline. Code Interpretation – Mauney/Rogerson Trust Short Plat - June 12, 2020 Page 5 of 7 Figure 3 – Recent Shoreline Aerial Depicting a Surface Connection Source: Washington Shoreline Photo Viewer c. A Portion of the Wetland is Within 200-feet of the Ordinary High Water Mark of the Shoreline. As depicted in Figure 1, a portion of the wetland is within 200-feet of the shoreline’s ordinary high water mark. Under the Department of Ecology’s SMP Handbook, the entire wetland is associated if any portion of it lies within 200-feet of the ordinary high water mark of the shoreline. Washington State Department of Ecology, Shoreline Master Programs Handbook, Ch. 5 pg. 24 (October 2017). In summary, the wetland depicted on the Short Plat is an associated wetland as the wetland is: (1) contiguous to a shoreline waterbody; (2) there is the presence of a surface connection from the wetland to the shoreline waterbody through the drainage ditch; and (3) a portion of the wetland is within 200-feet of the shoreline’s ordinary high water mark. As the wetland is an associated wetland, the wetland is jurisdictional under the SMP as shorelands. JCC 18.25.200; JCC 18.25.100(19)(m); JCC 18.25.100(19)(q). Code Interpretation – Mauney/Rogerson Trust Short Plat - June 12, 2020 Page 6 of 7 4. The SMP Recognizes and Applies Buffers Depicted on Existing Plats, Including Critical Area Buffers When the Critical Area is Jurisdictional under the SMP. “The county shall recognize and apply a buffer or setback established by an existing plat , preliminary plat, issued permit, binding site plan (BSP), site plan approval advance determination (SPAAD), or a development agreement that is consistent with Chapter 36.70B RCW.” JCC 18.25.270(4)(f); JCC 18.25.270(1)(c). (emphasis added). As the wetland at issue is jurisdictional as an associated wetland (shoreland), the CAO, as modified by the SMP applies to the wetland and its buffer. JCC 18.25.270(4); JCC 18.25.060. Therefore, JCC 18.25.270(4)(f) requires the County to “recognize and apply” the 60-foot critical area wetland buffer as depicted on the Short Plat. However, if the SMP later amended, there is no guarantee that JCC 18.25.270(4)(f) or a similar provision will continue to “recognize and apply” the 60-foot critical area wetland buffer depicted on the Short Plat. 5. The SMP Requires a 10-foot Building Setback from the Critical Area Wetland Buffer The SMP requires a 10-foot building setback from the landward edge of the standard buffer [in this case the 60-foot critical area wetland buffer] for all new uses and development. JCC 18.25.270(4)(d). Code Interpretation: This Code Interpretation makes a one-time case-by-case jurisdictional determination under the Jefferson County Shoreline Master Program (“SMP”) and determines the appropriate critical area wetland buffer and setback for proposed development of the Short Plat based upon the regulations as they currently exist. The SMP incorporates the Critical Area Ordinance (“CAO”) by reference and when critical areas are jurisdictional as shorelands under the SMP, the SMP applies a modified version of the CAO to the critical area. Even though the SMP applies a modified version of the CAO to the critical area, the shoreland critical area remains under SMP jurisdiction. In this case, the wetland depicted on the Mauney/Rogerson Trust Short Plat, SUB12- 0001/MLA12-0014, is an associated wetland and is a jurisdictional shoreland as the wetland is: (1) contiguous to a shoreline waterbody; (2) there is the presence of a surface connection from the wetland to the shoreline waterbody through the drainage ditch; and (3) a portion of the wetland is within 200-feet of the shoreline’s ordinary high water mark. As the wetland is an associated wetland, the whole wetland is jurisdictional under the SMP as a shoreland. The SMP, under JCC 18.25.270(4)(f), requires the County to “recognize and apply” the 60-foot critical area wetland buffer depicted on the Short Plat to proposed development. An additional 10- foot building setback is required from the landward edge of the 60-foot critical area wetland buffer for proposed development. JCC 18.25.270(4)(d). However, there is no guarantee that future Code Interpretation – Mauney/Rogerson Trust Short Plat - June 12, 2020 Page 7 of 7 amendments to the SMP will continue to “recognize and apply” buffers or setbacks from existing plats. This interpretation applies to: All Properties within the Mauney/Rogerson Trust Short Plat, SUB12-00011/MLA12-00141, Jefferson County Parcel ID Nos. 921094035, 921094036, and 921094037. This Code Interpretation does not apply to any other properties. Applicability: In accordance with JCC 18.40.380, this Code Interpretation will remain in effect unless and until the Administrator issues a written rescission or the code is formally amended to supersede this interpretation. This Code Interpretation may be enforced in the same manner that any provision of the Unified Development Code is enforced. Appeal: Per JCC 18.40.390 and JCC 18.25.610(2), this Code Interpretation may be appealed to the Hearing Examiner within fourteen (14) calendar days of the decision using the process for appeals of Type II permit decisions as set forth in JCC 18.40.330. Dated this 12th day of June 2020. ____________________________________ Linda Paralez, Interim Director / UDC Administrator