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HomeMy WebLinkAboutAppendix D_DraftPRChecklist_2021_0514_SMPTeam_2DRAFT May 14, 2021 Jefferson County | SMP Periodic Review Staff Report D. Periodic Review Checklist Shoreline Master Program Periodic Review Checklist 1 July 2019 Jefferson County | Draft | May 14, 2021 SHORELINE MASTER PROGRAM PERIODIC REVIEW Periodic Review Checklist This document is intended for use by counties, cities and towns subject to the Shoreline Management Act (SMA) to conduct the “periodic review” of their Shoreline Master Programs (SMPs). This review is intended to keep SMPs current with amendments to state laws or rules, changes to local plans and regulations, and changes to address local circumstances, new information or improved data. The review is required under the SMA at RCW 90.58.080(4). Ecology’s rule outlining procedures for conducting these reviews is at WAC 173-26-090. This checklist summarizes amendments to state law, rules and applicable updated guidance adopted between 2007 and 2019 that may trigger the need for local SMP amendments during periodic reviews. How to use this checklist See the associated Periodic Review Checklist Guidance for a description of each item, relevant links, review considerations, and example language. At the beginning of the periodic review, use the review column to document review considerations and determine if local amendments are needed to maintain compliance. See WAC 173-26-090(3)(b)(i). Ecology recommends reviewing all items on the checklist. Some items on the checklist prior to the local SMP adoption may be relevant. At the end of your review process, use the checklist as a final summary identifying your final action, indicating where the SMP addresses applicable amended laws, or indicate where no action is needed. See WAC 173-26-090(3)(d)(ii)(D), and WAC 173-26-110(9)(b). Local governments should coordinate with their assigned Ecology regional planner for more information on how to use this checklist and conduct the periodic review. Shoreline Master Program Periodic Review Checklist 2 July 2019 Jefferson County | Draft | May 14, 2021 Prepared By Jurisdiction Date David Wayne Johnson Jefferson County 5/14/2021 Row Summary of change Review Action 2019 a. OFM adjusted the cost threshold for building freshwater docks JCC 18.25.560 Exemptions Listed #9 reads: “Residential Docks. … The private dock exemption applies to dock construction cost as specified in RCW 90.58.030(3)(e).” No action required. Reference to WAC 173-27-040(2)(h) is made. b. The Legislature removed the requirement for a shoreline permit for disposal of dredged materials at Dredged Material Management Program sites (applies to 9 jurisdictions) JCC 18.25.360 Dredging Dredge Disposal Regulation #4.d reads: “When consistent with this program, disposal of dredged materials in water areas other than PSDDA sites may only be allowed for the following reasons: (i) To restore or enhance habitat; or (ii) To reestablish substrates for fish and shellfish resources; or (iii) To nourish beaches that are starved for sediment; or (iv) To remediate contaminated sediments.” DMMP not applicable to Jefferson County. No action required c. The Legislature added restoring native kelp, eelgrass beds and native oysters as fish habitat enhancement projects. JCC 18.25.560 Exemptions Listed #18 reads: “A public or private project, the primary purpose of which is to improve fish or wildlife habitat or fish passage, when all of the following apply: (a) The project has been approved in writing by the Department of Fish and Wildlife as necessary for the improvement of the habitat or passage and appropriately designed and sited to No action required. Per Ecology, consider the expanded language at WAC 173-27-040(2)(p) with the more explicit citation to RCW 77.55.181. Change proposed to cross reference 173-27-040(2)(p). Shoreline Master Program Periodic Review Checklist 3 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action accomplish the intended purpose; (b) The project received hydraulic project approval by the Department of Fish and Wildlife pursuant to Chapter 75.20 RCW; and (c) The administrator has determined that the project is consistent with this program. The administrator shall make such determination in a timely manner and provide it by letter to the project proponent. [Ord. 7-13 Exh. A (Art. IX § 3)]” 2017 a. OFM adjusted the cost threshold for substantial development to $7,047. JCC 18.25.100 Definition #19.tt reads: “Substantial Development…$5,718 or as adjusted by the state legislature…” JCC 18.25.560 Exemptions Listed #1. Fair Market Value reads: “…does not exceed $6,416 or as adjusted by WAC 173-27-040…” These dollar amounts are out of date, and internally inconsistent, however ‘or as adjusted’ ensures the current value would prevail. No action required. Optional revision to replace both outdated figures with current value of $7,047 for clarity & document improvement. Ecology suggests changing value or changing to citation; approach up to County but Ecology would require a change since the SMP had explicitly stated the older value. Change proposed to add new value. b. Ecology permit rules clarified the definition of “development” does not include dismantling or removing structures. JCC 18.25.100 Definition #4.g reads: “(g) ***“Development” means a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; driving of piling; placing of obstructions; or No action required. Optional revision to add text for clarity and document improvement. Change added to draft SMP revisions. Shoreline Master Program Periodic Review Checklist 4 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this program at any state of water level.” Definition is consistent with statute and WAC but lacks the clarification. c. Ecology adopted rules clarifying exceptions to local review under the SMA. JCC 18.25 does not address these exceptions from WAC 173-27-044 (remedial actions, boatyard improvements to meet NPDES permit requirements, WSDOT facility maintenance, etc.) No action required - the exceptions apply regardless of SMP inclusion. Optional text revision at 18.25.620(9) to add the example language for clarity and to ensure consistent implementation. Change added to draft SMP revisions. d. Ecology amended rules clarifying permit filing procedures consistent with a 2011 statute. JCC 18.25.750 Notice of decision, reconsideration and appeal. #1. A notice of decision for action on a shoreline substantial development permit, shoreline variance, or shoreline conditional use permit shall be provided to the applicant/proponent and any party of record in accordance with the procedures of Chapter 18.40 JCC and at least 10 days prior to filing such decisions with the Department of Ecology pursuant to WAC 173-27- 130. Decisions filed with the Department of Ecology shall contain the following information: (a) A copy of the complete application; Revision required to clarify current standards for date of filing by permit type, concurrent filings, ECY notice by phone/email & written, and submittal to ECY by return receipt requested. Incorporate example language. Change added to draft SMP revisions. Shoreline Master Program Periodic Review Checklist 5 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action (b) Findings and conclusions that establish the basis for the decision including but not limited to identification of shoreline environment designation, applicable master program policies and regulations and the consistency of the project with appropriate review criteria for the type of permit(s); (c) The final decision of the local government; (d) Where applicable, local government shall also file the applicable documents required by SEPA, or in lieu thereof, a statement summarizing the actions and dates of such actions taken under Chapter 43.21C RCW; and (e) When the project has been modified in the course of the local review process, plans or text shall be provided that clearly indicate the final approved plan. JCC 18.25.760 Initiation of Development #2 “Date of Filing. “Date of filing” of a substantial development permit is the date of actual receipt of the decision by the Department of Ecology. The “date of filing” for a shoreline variance or shoreline conditional use permit shall mean the date the permit decision rendered by the Department of Ecology is transmitted by the Department of Ecology to the county and the Shoreline Master Program Periodic Review Checklist 6 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action applicant/proponent. [Ord. 7- 13 Exh. A (Art. X § 17)]” e. Ecology amended forestry use regulations to clarify that forest practices that only involves timber cutting are not SMA “developments” and do not require SDPs. JCC 18.25.460 Forest Practices Regulation #4.b. “Except as provided in subsections (4)(c) and (d) of this section, timber harvesting and forest practices activities that do not meet the definition of development in Article II of this chapter shall not be regulated by this program and shall not require a shoreline permit.” … #4.e “Other activities associated with timber harvesting, such as filling, excavation, and building roads and structures, that meet the definition of development shall be regulated according to the general provisions (Article VI of this chapter), shoreline modification provisions (Article VII of this chapter) and/or the other applicable use-specific provisions (this article) of this program and shall require a shoreline substantial development permit or conditional use permit as specified in this program.” No action required. Optional text revision to incorporate example language. Change added to draft SMP revisions. f. Ecology clarified the SMA does not apply to lands under exclusive federal jurisdiction JCC 18.25.020 Applicability #4. This program shall apply to: (a) All of the lands and waters of Jefferson County that fall under the jurisdiction of Chapter 90.58 RCW; and (b) Every person, individual, firm, partnership, association, organization, Exclusive Federal Jurisdiction in Olympic National Park per RCW 37.08.210) is not explicitly addressed. Optional text revision for clarity to add example language. Per Ecology: Olympic National Park is one of two such Shoreline Master Program Periodic Review Checklist 7 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action local or state governmental agency, public or municipal corporation, or other nonfederal entity; and (c) All nonfederal uses and developments undertaken on federal lands and on lands subject to nonfederal ownership, lease, or easement, even though such lands may fall within the external boundaries of federally owned lands (Footnote1)*. *Wording from WAC 173-27- 060(3). locations established by statute and County is encouraged to address this issue, likely in JCC 18.25.020 Applicability. Change added to draft SMP revisions. g. Ecology clarified “default” provisions for nonconforming uses and development. JCC 18.25.660 No action required due to State rule. This rule is a default rule that only applies if a local government has no provisions in its local SMP addressing nonconforming uses. h. Ecology adopted rule amendments to clarify the scope and process for conducting periodic reviews. JCC 18.25.840 Master program amendments does not address periodic review. No action required – the periodic review requirements apply regardless of SMP inclusion. Optional text revision to add example language for clarity. Change added to draft SMP revisions. i. Ecology adopted a new rule creating an optional SMP amendment process that allows for a shared local/state public comment period. JCC 18.25.840 Master program amendments does not address the optional joint review process. No action required – the optional joint review process per WAC 173-26-104 applies regardless of SMP inclusion. j. Submittal to Ecology of proposed SMP amendments. JCC 18.25 does not address Ecology submittal requirements. No action required – the submittal requirements of WAC 173-26-110 and -120 apply regardless of SMP inclusion. Shoreline Master Program Periodic Review Checklist 8 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action 2016 a. The Legislature created a new shoreline permit exemption for retrofitting existing structure to comply with the Americans with Disabilities Act. JCC 18.25.560 Exemptions Listed does not include the new ADA exemption. No action required – the SDP exemption applies regardless of SMP inclusion. Ecology suggests including in full like other exemptions or changing to citations. Jefferson County can determine approach. Change of some kind would likely be required. Optional text revision for clarity to add example language. Change added to draft SMP revisions. b. Ecology updated wetlands critical areas guidance including implementation guidance for the 2014 wetlands rating system. 18.25.060 and .270(4)(a): The 2014 SMP adopts the now out-of-date 2008 critical areas regulations by reference. Related revisions anticipated during this periodic review will instead adopt the current 2020 CAO that addresses wetland issues as follows: • JCC 18.22.710 (2) references the 2014 Rating System; • JCC 18.22.730 (5) addresses wetland use for stormwater management; • JCC 18.22.730 (6) establishes buffer widths, Table .730(1)(b) identifies minimizing measures, and Table .730(1)(c) establishes the reduced buffer widths allowed; • JCC 18.22.730(9) requires a wildlife corridor for reduced buffer widths; Additional Amendments item #2011a below proposes concurrent revision to incorporate the 2020 CAO by reference. Shoreline Master Program Periodic Review Checklist 9 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action • JCC 18.22.740 addresses wetland mitigation • JCC 18.22.700 - .740 do not allow exemptions for small wetlands; • JCC 18.22.800 - .860 address agriculture in/near wetlands & other critical areas; The JCC 18.22.730 Table 1.a buffers and Table 1.b buffer reduction criteria reflect the Ecology CAO comment letter 1/21/20. Once the SMP relies on the 2020 CAO it will adequately reflect the most current technical guidance for wetlands. 2015 a. The Legislature adopted a 90- day target for local review of Washington State Department of Transportation (WSDOT) projects. Neither JCC 18.25.520 Transportation nor JCC 18.25.650 Notice of application and permit application review specify this timeline target. No action required – the review timeline target applies regardless of SMP inclusion. Optional text revision at 18.25.650 to add example language. Change added to draft SMP revisions. 2014 a. The Legislature created a new definition and policy for floating on-water residences legally established before 7/1/2014. Neither JCC 18.25.220 Use Table nor 18.25.500 Residential specify Floating Homes or FOWRs, but do prohibit in-water, overwater or floating residences outright, and Single-Family Residential use (including appurtenances & accessory structures), waterward of OHWM in both the Priority Aquatic and the Aquatic SEDs. No action required. Optional text revision at 18.25.100(6) and .500(2)(a) for ‘floating dwellings’ to sync up terms used and Definitions with RCW 90.58.270. Per Ecology, though none exist and the SMP prohibits new residential in/over water, County may want to revise the existing term ‘floating house’ and definitions to reflect these terms defined by statute/WAC. Shoreline Master Program Periodic Review Checklist 10 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action JCC 18.25.100 Definition #6.m. “Floating house” means any floating structure that is designed, or has been substantially and structurally remodeled or redesigned, to serve primarily as a residence. “Floating houses” include house boats, house barges, or any floating structures that serve primarily as a residence and do not qualify as a vessel. A floating structure that is used as a residence and is capable of navigation, but is not designed primarily for navigation, nor is normally capable of self-propulsion and use as a means of transportation, is a floating house, not a vessel per WAC 332-30-103. Change added to draft SMP revisions. See also related issue at 2011.c below. 2012 a. The Legislature amended the SMA to clarify SMP appeal procedures. JCC 18.25.840 Master program amendments. Pursuant to RCW 90.58.190 and 36.70A.280, a decision by the Jefferson County board of county commissioners to amend this master program shall not constitute a final appealable decision until the Department of Ecology has made a decision to approve, reject, or modify the proposed amendment. Following the decision of the Department of Ecology regarding the proposed amendment, the decision may be appealed to the Western Washington Growth Management Hearings No action required – the statutory & rule requirements apply regardless of SMP inclusion. Shoreline Master Program Periodic Review Checklist 11 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action Board. [Ord. 7-13 Exh. A (Art. X § 25)] 2011 a. Ecology adopted a rule requiring that wetlands be delineated in accordance with the approved federal wetland delineation manual. 18.25.060 and .270(4)(a): The 2014 SMP adopts the now out-of-date 2008 critical areas regulations by reference. Related revisions anticipated during this periodic review will instead adopt the current 2020 CAO that addresses wetland delineation as follows: • JCC 18.22.710(1) references a specific dated delineation manual ‘or as revised’. Once the SMP relies on the 2020 CAO it will adequately reflect the most current technical guidance for wetland delineations. Additional Amendments item #xx below proposes concurrent revision to incorporate the 2020 CAO by reference. b. Ecology adopted rules for new commercial geoduck aquaculture. JCC 18.25.100 Definitions #1.bb includes the clarification that wildstock geoduck harvest is not aquaculture; #2.t “Bottom culture” means all aquaculture systems that are set on or securely and rigidly attached to the tidelands or bedlands and do not extend higher than six feet from the bottom (excluding hoists and similar apparatus). Bottom culture includes but is not limited to geoduck tubes, oyster longlines, clam netting, oyster rack and bags, and clam bags. Bottom culture does not include aquaculture suspended from rafts or buoys or contained in floating net pens. JCC 18.25.220 and -440 have been revised to require a CUP for all new commercial geoduck aquaculture and to add supporting regulations governing commercial geoduck aquaculture per WAC 173-26- 241(3)(b)(ii-iv). A general provision that applies to all aquaculture from WAC 173-26- 241(3)(b)(C) was also added as JCC 18.25.440(4)(f). Shoreline Master Program Periodic Review Checklist 12 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action JCC 18.25.220 Use Table Geoduck aquaculture is allowed in both the Priority Aquatic and Aquatic SEDs, requires an SDP when adjacent to High Intensity SED, and requires a CUP when adjacent to Natural, Conservancy, and Shoreline Residential SEDS. JCC 18.25.440 Aquaculture. General Regulations 4.a-f apply, including: • initial siting/planting SDP 5- yr limit + 1-yr extension; • ongoing operations allowance; • 25% / 10-yr expansion limit; • activities allowed w/o SDP, unless public use interference, structures, mechanical dredging, or filling; • JARPA & SEPA submittals to allow case-by-case assessment of use interference w/ exceptions; • Standards e(i – xv) re: adverse impacts, cumulative effects, nonWO structures, OW sleeping quarters, height limits, visual impacts, interference w/ Nav, Public Access, Tribal harvest, 600 - 1500 from NWR/other protected areas, shading kelp, helical anchors, compensate use of public facilities, predator control methods, chemicals/GMOs, non-Nav lighting, waste disposal; • f. “Prior to approving a permit for floating/hanging aquaculture’ use and Shoreline Master Program Periodic Review Checklist 13 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action 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.” c. The Legislature created a new definition and policy for floating homes permitted or legally established prior to January 1, 2011. See 2014.a above See 2014.a above d. The Legislature authorizing a new option to classify existing structures as conforming. Neither JCC 18.25.660 Nonconforming development nor JCC 18.25.500 Residential. establish this optional allowance No action required. Optional revision to add text implementing RCW 90.58.620 and WAC 173-26-241(3.j) at .660(1)(e) Change added. 2010 a. The Legislature adopted Growth Management Act – Shoreline Management Act clarifications. Critical areas in shoreline jurisdiction must be protected to ‘assure no net loss of shoreline ecological function’ - .270(2)(a) and (b) provide general NNL regulations; more explicit provision needed for strict compliance. Critical area regs are incorporated by reference or established separately by the SMP - both .060 and .270 establish incorporation by reference; SMP becomes effective 14-days after ECY final action - .840 addresses Master program amendments but does not specify the effective date. For consistency with WAC 173- 26-221(2.a.ii), amendment made to .270(1)(a) for critical area protection; SMP not required to include effective date detail per WAC 173-26-120(3.d.i), but for clarity, optional amendment made to 18.25.840 regarding effective date. Shoreline Master Program Periodic Review Checklist 14 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action 2009 a. The Legislature created new “relief” procedures for instances in which a shoreline restoration project within a UGA creates a shift in Ordinary High Water Mark. Neither JCC 18.25.170 Restoration and enhancement – Purpose & Goals; nor JCC 18.25.400 Restoration address this optional relief provision. No action required – the process may be used regardless of SMP inclusion. Optional text revision to add example language (i.e. Checklist Guidance option 1) Change added to draft SMP revisions - see new section JCC 18.25. at .400(4) b. Ecology adopted a rule for certifying wetland mitigation banks. Referenced potential for wetland mitigation bank in SMP at JCC 18.25.270 (2)(h). Fee in lieu is referenced in CAO. The County has not established a mitigation bank program so (2)(h) serves as a placeholder until such a certified program exists. Language in JCC 18.25.270(2)(h) meets the Ecology requirement; Optional text revision to add the word ‘certified’ for accuracy/clarity (i.e., …certified mitigation banks,…). c. The Legislature added moratoria authority and procedures to the SMA. JCC 18.25 does not address moratoria No action required – the statutory provisions apply regardless of SMP inclusion. 2007 a. The Legislature clarified options for defining "floodway" as either the area that has been established in FEMA maps, or the floodway criteria set in the SMA. JCC 18.25.100 Definitions #6.r. “Floodway” means the area of a river valley that conveys flood waters with reasonable regularity, although not necessarily annually. At a minimum, the floodway is that which has been established in Federal Emergency Management Act flood insurance rate maps or Federal Emergency Management Act floodway maps. Other data and information, including topography, changes in soil or vegetation, and other indicators of past flooding, may be used to define and map a floodway that meets The adopted SMP definition is similar to Ecology example language Option 1. Made edits to be identical. Shoreline Master Program Periodic Review Checklist 15 July 2019 Jefferson County | Draft | May 14, 2021 Row Summary of change Review Action the objectives of the Shoreline Management Act, Chapter 90.58 RCW. The floodway shall not include those lands that can reasonably be expected to be protected from 100-year flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state. b. Ecology amended rules to clarify that comprehensively updated SMPs shall include a list and map of streams and lakes that are in shoreline jurisdiction. JCC 18.25.870 Official Shoreline Map adequately shows jurisdictional waterbodies including streams/rivers and lakes; The SMP does not include a List of Waterbodies as required by WAC 173-18-044 Streams, and -20-044 Lakes. The list provided in the SMP shall be the official list for that jurisdiction and supersedes the list previously established by WAC. A modified version of the list of shorelines from the Inventory and Characterization are added as a new .890 to identify the streams/rivers and lakes constituting shorelines of the state within the jurisdiction of this SMP. c. Ecology’s rule listing statutory exemptions from the requirement for an SDP was amended to include fish habitat enhancement projects that conform to the provisions of RCW 77.55.181. JCC 18.25.560 Exemptions Listed #18 lacks an explicit reference to RCW 77.55.181. No action required See related issue at 2019.c above. Change added to draft SMP at .560 to add WAC citation for detailed description that includes reference to RCW 77.55.181. Other Required Amendments Per Ecology Year SMP Section Summary of Change Discussion 1989 ORMA; 18.25.900 - 930 Ocean Management 18.25.060 –While ORMA (RCW 43.143) and WAC 173- 26-360 have long been in Ecology required though not on periodic review checklist since ORMA and WAC 173-26- Shoreline Master Program Periodic Review Checklist 16 July 2019 Jefferson County | Draft | May 14, 2021 Year SMP Section Summary of Change Discussion 2018 Marine Spatial Plan effect, the SMP’s Ocean uses placeholder provision at (5) was adequate for 2014 approval; since then the WA Marine Spatial Plan was adopted in 2018, and the SMP now needs adequate provisions to fully implement ORMA & the MSP as required by statute & WAC. 360 predate 2007 legislative changes. Separate ORMA & MSP draft guidance materials provided January 2021 by Ecology. See added article XII in SMP using example/model language. Additional amendments The additional amendments listed below address issues identified by County staff during implementation, including administrative code interpretations, and by the 2020 SMP Task Force. These amendments are intended to ensure consistency with the County Comprehensive Plan and development regulations, and reflect changes in local circumstance, new information, and improved data, including implementation challenges and the County’s Regulatory Reform Resolution #17-19. County-Proposed Edits: SMP Task Force SMP Section Summary of change Discussion & Action 18.25.660 Nonconforming development Task Force A: Maintain protective standards to achieve no-net-loss of shoreline ecological function, but reduce unnecessary CUPs/variances. Potentially adjust administrative versus discretionary CUPs. Examples include but are not limited to: existing single family home expansions and septic systems. Meet environmental protection and address regulatory reform. 18.25.270(5)(e) Added provisions for septic expansion in the buffer; 18.25.340(3)(e) and (f) Beach Access Structure allowances per SED – removed CUP requirement for Shoreline Residential and High Intensity SEDs. 18.25.660(8) Allow for lateral expansion subject to the square footage limitations subject to a Type II permit that includes notice. Add a more specific planting plan intended to provide no-net-loss through equivalent enhancement of the shoreline buffer. Also add a monitoring plan to help respond to tribal and agency input. In JCC 18.25.660(8) in addition to allowing for waterward expansion in existing structure foundation wall, allow for a small one-time enlargement of only 200 Shoreline Master Program Periodic Review Checklist 17 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of change Discussion & Action square feet on existing legally installed impervious area and if landward of the common line setback if providing a planting plan and revegetating the area with 80% native plantings; similar to modest home provision but for small expansions (e.g. expand kitchen in only place possible). 18.25.660 (9) Expansions that are larger than in (8) that are lateral, vertical, or landward, with discretionary permit provided the applicant prepares a planting plan and conducts monitoring in (8)(g). 18.25.300(2)(d) Allow for height variance in order to respond to sea level rise. 18.25.220 Allowed Use Table, 18.25.350 Boating Facilities Task Force B: Review permit type and standards for buoys compared to other shoreline facilities for boating. Consider where there are good locations for buoys. Review buoy standards versus anchoring, and unintended consequences of SMP regulations. Clarify permitting standards surrounding eelgrass beds, including differences between areas with eelgrass patches and full eelgrass coverage. Consider appropriate number or density of buoys. Clarify SMP. Allow best practices that minimize environmental impact. Address regulatory reform. Result: .220 Use Table - Shifted buoys from ‘C(a)’ for CUP to ‘P’ for SDP in Shoreline Residential and Conservancy environments. .350 Boating Facilities – (2.d & e) Revised text to match revised Use Table SED allowances; (8.d, e & h) Revised text to minimize eelgrass disturbance, specify limited allowance for non-embedded anchor, and increased limit on number of buoys per residential lot to two (DNR allows second buoy to help secure moorage of a single boat to first buoy; see Washington department of Natural Resources Recreational Mooring Buoys brochure, October 2014. https://www.dnr.wa.gov/publications/aqr _mooring_buoy_brochure_318.pdf). 18.25.120, 18.25.180, 18.25.190, 18.25.300, 18.25.430, 18.25.520 Task Force C: Add in Comprehensive Plan climate policies like Option 1. Plus, strive for consistency with Port Townsend’s SMP. Ensure that policies and permit standards do not limit Proactively address climate change and sea-level rise particularly for activities with long-life. Shoreline Master Program Periodic Review Checklist 18 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of change Discussion & Action projects that are proactively addressing projections in sea level rise due to climate change. Consider elevation, not just distance from the ordinary highwater mark, for shoreline permitting. Result: Most Comprehensive Plan policies added into SMP. Opportunity to request a Variance to add height in response to sea- level rise. Added policy on retreat, accommodate, and protect. 18.25.100 Definitions, Table 18.25.220, 18.25.450 Task Force D: Marine trades and economic development. Ensure SMP permitting process does not unduly burden marine trades. Recognize important sectors that support economy and water oriented uses. Result: Reviewed current use matrix; most uses listed in added marine trades definition addressed in SMP. Also see edits to .350 buoys and launches. Also added reference to maritime trades definition and maritime education/training at .100 (19.c) as a scientific and educational activity subject to commercial standards. 2018 study by Martin Associates: http://ptmta.org/wp/wp- content/uploads/2018/05/2018-Jefferson- County-Marine-Trades-Impact-Report.pdf. Allowed Use Table 18.25.220, 18.25.350 Boating facilities Task Force E: Encourage development of new public boat launches and improvement of existing boat launches in SMP. Lack of boat launches, condition of existing. Result: .220 Use Table - Changed CUP to P for nonresidential boat launches in Conservancy. .350 (2.d) – Revised text to allow nonresidential launch with SDP to match use Table revision. This should assist with new launches and modifications/expansions/ improvements of existing launches. .350(3.b.iii) and (4.b) Public and Private Boat Launches - After conversation with WDFW, added reference to WAC design standards to be used to extent feasible. Also made sure that distinction between residential/nonresidential vs. public/private was applied in the regulations appropriately and consistent with the use matrix. 18.25.250 SSWS Use preference Task Force F: Review how Shoreline Management Act purposes are carried out with use allowances and permitting. Clarify how SMP is carried out on SSWS identified for optimal implementation of SMP. Shoreline Master Program Periodic Review Checklist 19 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of change Discussion & Action Result: Addressed policy updates which should apply to all permits. County Proposed SMP Edits: Staff Docket and Code Interpretations SMP Section Summary of Change Discussion 18.25.100 definitions Clarify terminology in appurtenance definition (e.g. add deck) Assist with applying exemptions at 18.25.560 regarding single family and appurtenances 18.25.100(6)(d) and 18.25.340 Beach access structures (2) Uses & Activities Prohibited Outright and Regulation (4)(j) - These two sections contradict each other. If new beach access is prohibited in marine feeder bluffs, why would it be allowed if the project is shown not to adversely affect? Redefine "feeder bluff" under 18.25.100(6)(d). Definition based on: Shipman, H., MacLennan, A., and Johannessen, J. 2014. Puget Sound Feeder Bluffs: Coastal Erosion as a Sediment Source and its Implications for Shoreline Management. Shorelands and Environmental Assistance Program, Washington Department of Ecology, Olympia, WA. Publication #14-06- 016. https://apps.ecology.wa.gov/publications/doc uments/1406016.pdf Retained subsection 18.25.340(2) based on Ecology feedback. Revised (4)(j) to eliminate duplicative reference to marine feeder bluffs which are prohibited in (340)(2). 18.25.100 Definitions Consider adding definitions for waterward and lateral as associated with implementing code language. Add definition under 18.25.100(12) for "Lateral," to define expansion in relation to the OHWM. Staff have found a need to include a definition of lateral as the term is not as understandable as waterward. Definition has to do with clarifying the distance from the OHWM which is how we determine conformity, not the overall size of the lot in terms of square feet. 18.25.100 Definitions and possibly 18.25.270 Revise (14)(h) nonconforming lot definition from "…minimum lot size…" to "minimum lot depth…", and check how it is used relative to the .270 (5)(a) modest home provision and the (5)(b) common line buffer. Clarify with revised definition of nonconforming in Article II,18.25.100. Change the text "size" to "depth." Coordinate with Code Interpretation #3 below. 18.25.100 Definitions and 18.25.240 Designation of shorelines of Incorrect citation/duplicative text - Definition of Shoreline of Statewide Significance are duplicates in JCC 18.25.100(19)(w)(i) and (ii). JCC 18.25.100(19)(vii) refers to both (i)and Delete subsection 18.25.100(w)(ii) and re- number subsequent subsections. Delete reference to (ii) in subsection (vii) (to be new subsection (vi) after re-numbering). Shorelines Shoreline Master Program Periodic Review Checklist 20 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of Change Discussion statewide significance. (ii), should ensure the correct subsections are reflected. of statewide significance should be verbatim from RCW 90.58.030(2)(f). 18.25.100 Add definitions of utilities and water system plan. Per recommendation of Ecology and County staff. The SMP is missing the definitions of “Utilities” and “Water Systems” from the definitions section of the SMP. It was suggested that “Utilities” and “Water Systems” be defined per WAC and pasted into the SMP. The definition of utilities is based on WAC 173- 26-241 (3) (l) and the definition of water system is based on per WAC 246-290. 18.25.200 Shoreline jurisdiction & mapping; and .210(4) Shoreline environment designations – Purpose and criteria. Implementation challenge - Clarify that west end rivers are aquatic below OHWM Add to .200(4)(c). 18.25.220 There is no category for “public use” in the use table. While working on a permit for a school in the shoreline jurisdiction, staff noticed there is no category for “public use” in the use table. Reviewing example SMPs, many treat institutional uses similar to commercial uses. 18.25.270 Critical areas, shoreline buffers, and ecological protection (4)Critical area & shoreline buffer Regulation (a)(i) - …SMP/Critical Area clarification This subsection was intended to mean that critical area regulations in Chapter 18.22 are to be used, but where there are discrepancies (such as those pertaining to buffers, nonconforming development, etc.), then the SMP prevails. Clarify how the SMP subsections pertaining to critical areas interact with critical area regulations in Chapter 18.22. 18.25.270 Critical areas, shoreline buffers, and ecological protection (4) Critical Areas and Shoreline Buffers Regulation (c) and (e)(iii) - Clarify if all streams requires a 150- foot buffer in all shoreline environments or if it is only those identified as "shorelines" in 90.58 RCW (>20cfs) Clarify title of (4)(e) to refer to shorelines. Shoreline Master Program Periodic Review Checklist 21 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of Change Discussion 18.25.270 Critical areas, shoreline buffers, and ecological protection (4) Regulations – Critical Areas and Shoreline Buffers – (i) Buffer Usage - Need to add a definition for "active use" within the shoreline buffer. Create definition for "active use" in 18.25.100(1) 18.25.270 Critical areas, shoreline buffers, and ecological protection (4) Critical Areas and Shoreline Buffers Regulation -(l) Alternative Protection via Critical Areas Stewardship Plans (CASPs) - Revise CASP from a Type III Shoreline Variance to a Type II SDP process and when it is used in shoreline jurisdiction - current language is awkward. Replace text of last sentence in 18.25.270(4)(l) to read, "such buffer modification shall require a Type II Substantial Development Permit (SDP).” Address consistency with CAO. 18.25.270 Critical areas, shoreline buffers, and ecological protection (5) Regulations – Exceptions to Critical Area and Shoreline Buffer Standards - Clarify that expansions to existing residential development can use the modest home provisions; not just new SFR development. Delete the text "New" under 18.25.270(5)(a). 18.25.300 Shoreline setbacks and height Regulation (2)(b) - Side yard setback language is confusing. SMP does not establish side yard setbacks, and JCC 18.30 does not identify side yard setbacks based off of zoning which makes it confusing for in water. Broaden to indicate side yards shall be consistent with zoning. 18.25.310 Vegetation conservation Provide clarification on vegetation maintenance requirements and how it is applicable to clearing for new development, such as a single family residence, or just for views. Delete "new" from 18.25.310(2)(b), (c), (d), and (e). Ecology also provided informal comments to clarify normal maintenance. 18.25.410 Structural shoreline armoring and shoreline stabilization. Clarify that the applicant must demonstrate erosion from ‘currents, tidal action, wind, or wave action’ per WAC 173-26-231(3.a) to approve soft shore stabilization. Add soft shore stabilization regulations. Geotechnical report requirement added to (4)(a) for Subdivisions and Existing Lots without Structures and (5)(e) for New or Expanded Shoreline Armoring. Description of geotechnical report contents added to (11)(f). Requirement for use of soft approaches when feasible added to (5)(d)(iii). Shoreline Master Program Periodic Review Checklist 22 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of Change Discussion A new section (10) added to make it clear that shoreline stabilization proposals that include structural (hard) elements such as rocks or logs must comply with applicable standards of sections (5) and (6), which may include a geotechnical analysis. In several locations, “and/or shoreline stabilization” was added when a provision was intended to apply to all kinds of shoreline protection methods (e.g., to (4)(a) and (4)(c) for existing lots and (11) Application Requirements.) 18.25.410 Structural shoreline armoring and shoreline stabilization Regulations - New or Expanded Shoreline Armoring at 18.25.410(5)(c)(iii) has wrong code reference to flood regulations. Correct the text reference in JCC 18.25.410(5)(c)(iii) from "JCC 18.30.070",which are the County’s Development Standards to "JCC 15.15." the County’s 2019 Flood Damage Prevention ordinance. 18.25.410 Structural shoreline armoring and shoreline stabilization Regulations - New or Expanded Shoreline Armoring, Design Standards at (6)(h) - Review if text should reference ‘fewer than 5’ or ‘4 or fewer’ residential lots as it would otherwise be inconsistent with WAC 173-26-221(4). Correct the text reference in JCC 18.25.410(6)(h) 18.25.440 Aquaculture General Regulation (4)(b)(i) - Clarify area included in 25% increase for both in-water and above OHWM development. Add text, "This applies to both in-water and above OHWM development." 18.25.440 (4)(d) Aquaculture Incorrect citation - References subsection (3)(c), but reference for interference should be (4)(c). Change reference to (3)(c) to (4)(c)(i) 18.25.440(4)(f) Section (4)(f) addresses a visual analysis for floating/hanging aquacultural. This is repeated (and modified) in (7)(b) – is duplicative of now-numbered (7)(c) Retain (7)(b) which seems to be the most appropriate location and remove (4)(f) as redundant. 18.25.440 (6) Aquaculture (6) Application Requirements - Provide guidance on the existing requirement for a visual analysis to Add text to 18.25.440(6)(b) to address guidance on visual impact. Shoreline Master Program Periodic Review Checklist 23 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of Change Discussion evaluate aesthetic impacts to aid both applicants and practitioners for submitting & reviewing such reports 18.25.560 Exemptions listed (15), (16), and (17) - Revise watershed restoration exemptions to be consistent with state law. Exemptions 15 and 17 are definitions, not exemptions. Clarify that exemption 16 has no shoreline permitting fee, per RCW 90.58.515. For editorial purposes, revise 18.25.560 Exemptions numbering to consolidate subsections (15), (16) & (17). 18.25.600 Unclassified uses; possibly, 18.25.100(3)(q) .600 - Clarify if an unclassified conditional use is a C, C(a), or C(d). If it is determined to be a C (i.e., Type III), then the CUP definition in JCC 18.25.100(3)(q) needs to be revised. If there is no C (Type III) in the shoreline regulations, that should be clarified in JCC 18.25.600. Revise text in 18.25.600 that reads, "may be authorized as conditional uses…" to read, "may be authorized as a Discretionary Conditional Use "C(d)" permit, provided…" 18.25.620 Permit application review. Unclear if C(a) permit and SSDP requires a Type III process. What is the process for stand-alone SSDP (yes use, but SSDP required)? JCC 18.25.620(3) & (4) are clear that C(a) and C(d) are processed as Type IIs. Clarify .620(2) to clarify SDPs are Type II and variances are Type III. 18.25.620 Permit application review & .630 Minimum permit application requirements Incorrect location - JCC 18.25.630(18) & (19) should be in 18.25.620 as (7) and (8) Move subsections (18) of 18.25.630 to 18.25.620 and re-number as subsection (7). Move subsection (19) to top of section .630 per Ecology request. 18.25.650 Notice of application and permit application review Why is section silent on notices for Type II permits, but spells out process on Type I and III permits? Add text "II &" to 18.25.650(1)(b) "Type III project permit…". Permit procedures should reference other processes in UDC and not duplicate or create new. 18.25.660 Nonconformin g development (9) Expansion/Enlargement with a Conditional Use Permit - Clarify if non-conforming lateral expansion is a C(a) or a C(d) Clarified as a C(d) in subsection (9). Shoreline Master Program Periodic Review Checklist 24 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of Change Discussion 18.25.660 Nonconformin g development Non-conforming expansion: change foundation walls to roof line to (8) and (10), and consider adding similar roof line language to (9). Combined with Task Force A direction. Clarify filling in the notch of foundation walls versus enclosing a porch (with size and enhancement criteria. Allow for expansion laterally as well as landward if meeting criteria. Allow for expansions meeting criteria in subsection (8) with SDP rather than an exemption to clarify procedures and allow for some notice. Provide specificity on planting plan and monitoring and for property owner to do on their own unless County determines professional is needed to support Regulatory Reform. Apply planting plan clarifications to subsections (9) and (10). 18.25.660 Nonconformin g development (8)(9) planting plan needs to be more explicit re: if a habitat management plan by a biologist is required. Define what is needed in a "planting plan" in subsections 18.25.660(8) & (9).Clarify planting plan related to other SMP standards and definitions with attention to regulatory reform to address implementation needs and avoid unnecessary paperwork and expense. Also add monitoring since enhancements should be retained. Also helps respond to interagency meeting/tribes. County Proposed SMP Edits: Code Interpretations Code Interpretation Summary of change - SMP Section Discussion Code Interpretation #1 2014 Septic Repair Add new section 18.25.270(5)(e). “(e) Nonconforming Septic Repair. The repair and replacement of an existing on-site sewage (OSS; or ‘septic’) system may be allowed in the buffer as an exemption under Section .560(2) of this Program if the system meets all the following criteria:…” The code interpretation was necessary, and approved by Ecology, to remedy the fact that as written, a repair of a failing septic system in the buffer would require a shoreline variance. Since we wanted to encourage and facilitate the repair of failing septic systems in the shoreline to protect water quality, we worked with Environmental Health Department to allow those repairs without an expansion of the system to be permitted as an exemption instead of a Type III Shoreline Variance requiring a public hearing and a decision by the Hearing Examiner. Shoreline Master Program Periodic Review Checklist 25 July 2019 Jefferson County | Draft | May 14, 2021 Code Interpretation Summary of change - SMP Section Discussion Code Interpretation #2 2015 Stormwater Add new section 18.25.270(5)(f). “(f) Stormwater Improvements. Stormwater improvements may be allowed in the buffer as an exemption under Section .560(2) of this Program when all the following criteria are met:…” At one time the County offered a vesting tool called a Site Plan Approval Advanced Determination (SPAAD). Anticipating an increase in the shoreline buffer, many shoreline property owners used the SPAAD to vest under the then 30 foot buffer for five years. Although the SPAAD vested the location of the home, it rarely addressed stormwater treatment facilities in the new 150 foot buffer. The code interpretation allowed placement of stormwater elements within the buffer under an approved SPAAD, similar to the failed septic systems under #1. Code Interpretation #3 2017 Non-conforming Shoreline Lots Change “size” to “depth” in section 18.25.100(14)(h): “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 a structure outside of/landward of the shoreline buffer or which does not otherwise meet the minimum lot depth 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 Definition for non-conforming lot has to do with clarifying the distance from the OHWM which is how we determine conformity in linear feet in terms of buffer width, not the overall size of the lot in terms of square feet, and is consistent with the “Depth” referenced in the following sentence. Also clarifies that lot size is not related to zoning (i.e. RR5) per code interpretation #3, in terms of the erroneous assumption that any lot less than 5 acres in the RR5 zone could be considered non-conforming. Code Interpretation #4 2019 Private Tidelands Not Applicable. The Code Interpretation analyzes the issue of whether the public has lawful access to privately owned tidelands, and is informational and advisory only. Summary: There is a strong body of case law and persuasive sources supporting public access and use of privately-owned tidelands and their dry sand areas for fishing, boating, swimming, and other recreational purposes under common law doctrines, such as the public trust doctrine and customary use theory. Shoreline Master Program Periodic Review Checklist 26 July 2019 Jefferson County | Draft | May 14, 2021 Code Interpretation Summary of change - SMP Section Discussion While there is not a clear statement of the law on this issue and there is not an applicable controlling case, it is likely that the Washington State Supreme Court will recognize public access under the public trust doctrine or another common law doctrine if addressed by the court at a later time. Code Interpretation #5 2020 Critical Area Setback Not Applicable. However, related to code section change proposed for 18.25.270(4)(f) under code interpretation #3. 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. Informal Agency Comments Fall 2020/Spring 2021 A productive multi-agency meeting was held on January 26, 2021, which included Skokomish Tribe, Port Gamble S’Klallam Tribe, WDFW, DNR, Ecology, Port Townsend, Kitsap County, and others. Through that discussion and follow up contacts through meetings or emails other requests or suggestions were made informally. SMP Section Summary of Change Discussion 18.25.100(2) Supports the language that a “Parallel structure along a shoreline at/above/ near OHWL with the intent to act like a bulkhead and to have similar impacts to shoreline armor must be reviewed/permitted as new shoreline armor.” Modified the definition of bulkhead in JCC 18.25.100(2). 18.25.100(8) Support the inclusion of kelp habitat protection as critical fish habitat and kelp as species of special concern under the Jefferson County SMP. Kelp beds are identified in the SMP as a “habitat of special significance.” 18.25.270, 18.25.660, and 18.22.640 Regarding buffer averaging, emphasize the need for careful review, and mitigation sequencing. Buffers initially Buffer averaging criteria at JCC 18.22.660 include avoidance and Shoreline Master Program Periodic Review Checklist 27 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of Change Discussion enhanced as mitigation may degrade over time. minimization, and that averaging cannot reduce functions of values. Regarding shoreline buffers and nonconforming development, see addition of planting plan details, monitoring and retaining enhancements. 18.25.340 Beach access structures Strongly support the protection of feeder bluffs from potential ecological process disruption and recommend that any changes to prohibitions increase or maintain the current level of protection. Pursuant to comments from both Ecology and WDFW, beach access structures remain prohibited on feeder bluffs. JCC 18.25.350(3) Recommend including language consistent with the Washington Administrative Code section 220-660- 150 for boat launches in in freshwater areas, and WAC 220-660-390 for boat launches in marine waters. JCC 18.25.350(3)(b)(iii) was modified to specifically reference parts 3 and 4 of each of the WAC sections. Part 2 was not specifically referenced as it seems to be just a statement of the effects of boat launches which are then addressed by the design standards of part 3. 18.25.350 Boating Facilities: Mooring Buoys Prioritize avoidance of impacts to eelgrass beds. “Avoid” was initially replaced with “minimize” after hearing from a Task Force member with specific experiences permitting projects that could not avoid an eelgrass bed, and the alternative would have been a fixed pile pier with greater, although different, aquatic impacts. The original language was too rigid. However, it has now been amended to say “Avoid, to the extent feasible, and minimize….” The intent is to still prioritize avoidance, but not close the door if that is not feasible. 18.25.350(7) Suggest a recommendation or requirement in the SMP Draft that guides applicants on the sequencing of mooring buoy permitting. Provision added to 18.25.350(7)(h)(i) encouraging applicants to pursue Corps permits prior to state and local permits. JCC 18.25.410(11) Recommend additional requirements on assessments of new marine shoreline armoring related to time frame and Language in WAC 173-26- 231(3)(a)(iii)(D) has been incorporated into the SMP at JCC Shoreline Master Program Periodic Review Checklist 28 July 2019 Jefferson County | Draft | May 14, 2021 SMP Section Summary of Change Discussion rates of erosion within three years, and identify drainage issues. 18.25.410(11)(f) (Application materials). JCC 18.25.410, Shoreline Armoring There are new state rules for WDFW regarding required information needed from applicants proposing marine shoreline armoring projects. Recommend coordinating requirements. Edits made to JCC 18.25.410(11)(a) (Application materials) to address this comment. JCC 18.25.410(11) Recommend including language to require geotechnical analysis to assess the necessity and impacts to geological processes of proposed new shoreline armoring. See HAP application information. JCC 18.25.410(11) (Regulations - Application Requirements) already addresses most of items referenced as appliable to HPAs, particularly with the addition of a geotechnical report requirement as (11)(f). 1. Risk assessment is incorporated into new (11)(f). 2. Evidence/characterization of erosion is incorporated into new (11)(f). 3/4. Alternatives and impact analysis is required by (11)(c) and would also be addressed through (11)(d, e, g). 5. These items would also be provided in applicant materials required by (11) as well as JCC 18.25.630 (Minimum permit application requirements). 18.25.660 Nonconforming development Limit expansions of non-conforming residential waterward on impervious areas. Ensure no-net-loss standard is highlighted. Ensure expansions of non-waterward (e.g. lateral) are limited and provide enhancement. Regarding (8) planting plan - include monitoring. All modifications of nonconforming residences must meet criteria to avoid impacts to critical areas. Added more criteria for small enclosures on existing impervious areas with increased enhancement, specific size limits. Enhancement and planting plan requirements further specified with 5-year monitoring and conditions to retain enhancements.