HomeMy WebLinkAboutLog222
~:-i
~. .
" .~ ~ . j. .
$"
(~
STATE OF WASHINGTON
DEPARTMENT OF ECOLOGY
PO Box 47775 · Olympia, Washington 98504-7775 · (360) 407-6300
October 25,2004
Mr. Al Scalf, Director
Department of Community Development
Jefferson County
621 Sheridan Street
Port Townsend, W A 98368
,..~
.;"
Subject: Port Ludlow Lagoon
Dear Mr. Scalf:
Thank you for your patience as we have all worked towards clarification on the issue of the
Shoreline jurisdictional status of the lagoon located in Port Ludlow Village (Port Ludlow
Lagoon). I appreciate the time you have taken to work with us. Our meeting, and the
meetings with others in your community, has helped us put this issue into perspective. It is
our opinion that the Port Ludlow Lagoon is covered by the provisions of the Shoreline
Management Act (SMA, Chapter 90.58 RCW) and the Jefferson County Shoreline
Management Master Program (SMMP), including the prohibition on over-water residential
construction (SMMP, 5.160).
The basic premise of our opinion is that the Port Ludlow Lagoon is within 200 feet of the
ordinary high water mark (OHWM) of Ludlow Bay, a Shoreline of the State. The strength
of our conviction, however, is based on a broader set of facts.
Background
"Shorelines" are defined as - "all of the water areas of the state, including reservoirs, and
their associated shorelands, together with the lands underlying them; except (i) shorelines
of statewide significance; (ii) shorelines on segments of streams upstream of a point where
the mean annual flow is twenty cubic feet per second or less and the wetlands associated
with such upstream segments; and (iii) shorelines on lakes less than twenty acres in size
and wetlands associated with such small lakes." (RCW 90.58.030(d))
"Shorelands" or "shoreland areas" are defined as - "those lands extending landward for
two hundred feet in all directions as measured on a horizontal plane from the ordinary high
water mark; floodways and contiguous floodplain areas landward two hundred feet from
LOC;
#8.~
Page__L..ofg=-
o
" .
. Mr. Al Scalf
October 25, 2004
Page 2
such floodways; and all wetlands and river deltas associated with the streams, lakes, and
tidal waters which are subject to the provisions of this chapter; the same to be designated
as to location by the department of ecology." (RCW 90.58.030(f))
The Port Ludlow Lagoon is a "water ofthe state" under Chapter 90.48 RCW (Water
Pollution Control Act). "Waters of the State" are defined as - "lakes, rivers, ponds,
streams, inland waters, underground waters, salt waters and all other surface waters and
watercourses within the jurisdiction ofthe state of Washington." (RCW 90.48.020)
The policy ofthe SMA states, in part - "It is the policy of the state to provide for the
management of the shorelines of the state by planning for and fostering all reasonable and
appropriate uses. This policy is designed to insure the development of these shorelines in a
manner which, while allowing for limited reduction of rights of the public in the navigable
waters, will promote and enhance the public interest. This policy contemplates protecting
against adverse effects to the public health, the land and its vegetation and wildlife, and the
waters of the state and their aquatic life, while protecting generally public rights of
navigation and corollary rights incidental thereto." (RCW 90.58.020, emphasis added)
RCW 90.58.020 states further - "Alterations of the natural condition ofthe shorelines and
shorelands ofthe state shall be recognized by the department. Shorelines and shorelands
of the state shall be appropriately classified and these classifications shall be revised when
circumstances warrant regardless of whether the change in circumstances occurs through
man-made causes or natural causes. Any areas resulting from alterations of the natural
condition of the shorelines and shore lands of the state no longer meeting the definition of
"shorelines ofthe state" shall not be subject to the provisions of chapter 90.58 RCW."
WAC 173-22-052 Alterations of shorelines affecting designations, states - "Alterations
of the existing conditions of shorelines and wetlands of the state which affect the boundary
or volume of those water bodies, whether through authorized development or natural
causes, shall warrant a review of the designation ofthose shorelines and their associated
wetlands." This letter is a response from that review of this waterbody.
RCW 90.58.900 states - "This chapter is exempted from the rule of strict construction, and
it shall be liberally construed to give full effect to the objectives and purposes for which it
was enacted." In simple terms, this means that in areas of uncertainty we must give
deference to the protection of the resource.
The Jefferson County SMP states in 5.160, Residential Development, Prohibited Uses and
Activities - "Residential Structures located on or over marshes, bogs, swamps, lagoons,
tidelands, ecologically sensitive areas or water areas subject to this Master Program."
Discussion
Several issues are relevant in our determination that the Port Ludlow Lagoon is under the
jurisdiction of the SMA; these have also been raised as arguments against such a
LOG ITEl'vi
# d-.~~ _
Page ~of~
. Mr. Al Scalf
October 25,2004
Page 3
jurisdictional determination. These issues include the artificial nature of the lagoon, the
limited value of the lagoon as habitat, and the continued alteration of the character of the
lagoon.
There is a claim that the lagoon is an artifichll feature, a landscape amenity, rather than a
natural water body. There is no distinction in the SMA for excluding artificial water
bodies from Shoreline jurisdiction. The definition of "shorelines" specifically includes
reservoirs, clearly indicating that artificially constructed bodies of water are covered under
the SMA. The exclusion of artificially created wetlands (90.58.030(h)) does not apply in
this case. First, the exclusion is limited to artificial wetlands created from nonwetland
areas. Historic maps and photographs of Port Ludlow show the progression of
development ofthis area that included the diking and filling of the upper tidal portion of
the bay to create the land area that now includes the Port Ludlow Lagoon. The lagoon was
not created from a nonwetland site. Second, the lagoon does not meet the statutory
definition of a "wetland." While there are areas around the fringe of the lagoon that
contain wetland vegetation, have wetland soils, and enough water to be considered
"wetland," the lagoon itself does not meet the three-parameter test for jurisdictional
wetlands (see WAC 173-22-080, Wetland Delineation Manual). The lagoon functions
more like a subtidal marine system because of the water depth and permanent inundation
(Cowardin, 1979, Classification of Wetlands and Deepwater Habitats ofthe United States).
Finally, the exclusion of a water body as a wetland does not mean the area is not a water of
the state (WAC 173-21A-020).
We recognize the fact that the lagoon and the natural condition that originally linked the
lagoon area with Port Ludlow Bay have been repeatedly altered over time. However, this
alteration does not eliminate the site from Shoreline jurisdiction. Weare directed to
recognize alterations to the shoreline; e.g., if authorized fill changes the OHWM of a
shoreline or eliminates an associated wetland from jurisdiction, then those changes are
reflected in future SMA decisions. That recognition also means that if SMA jurisdiction is
expanded e.g., through the removal of historic fill along a shoreline, then the OHWM gets
pulled back to recognize the "new" shoreline boundary. Partial fill in an associated
wetland would not result in the entire wetland being eliminated from SMA jurisdiction,
only in the recognition that the boundary of SMA jurisdiction has changed.
It is our opinion that the Port Ludlow Lagoon falls within the scope of the prohibition in
the Jefferson County SMMP for over-water residential construction (5.160). Specifically,
"Residential Structures located on or over marshes, bogs, swamps, lagoons, tidelands,
ecologically sensitive areas or water areas subject to this Master Program." While this
body of water may not be a marsh, bog, or swamp (i.e., a wetland), it is certainly a lagoon;
which Webster's Dictionary defines as - "A shallow body of water, esp. one separated
from the sea by sandbars or coral reefs." Two culverts maintain a connection between the
lagoon and Port Ludlow Bay; one culvert has a functioning tide gate, the other is an open
pipe with a bottom elevation located approximately 0.10 above mean higher high water
(MHHW). A strong case could probably be made for the lagoon as a tideland because 0.10
feet above MHHW would still get fairly fret~~'ftl!tufation. Finally, the lagoon is a
# ~.~~
Page~_,,~of f-- _
.. . 1.. ~'- ~:
...
. Mr. Al Scalf
October 25, 2004
Page 4
"water area" within SMA jurisdiction and, therefore, subject to the Jefferson County
SMMP.
Conclusions
While not fitting neatly into readily available definitions, the lagoon is certainly a body of
water within SMA jurisdiction. RCW 90.58.900 directs Ecology to interpret the SMA
liberally to ensure full protection of shoreline resources. This requires a more inclusive
interpretation of the prohibition, rather than a more restricted interpretation. The limited,
or degraded, value of the lagoon as fish and wildlife habitat may mean that it should not be
considered as an "ecologically sensitive areas," but it is still a lagoon, and it is still a water
area. There are no qualitative limitations on those phrases.
The Port Ludlow Lagoon is a water ofthe state, and it is in SMA jurisdiction. The
department of Ecology does not believe that over-water, residential construction is an
allowed use under the Jefferson County SMMP. We do believe, however, that there are
solutions to this situation. We would be very willing to evaluate any project alternatives
that may be proposed by the Port Ludlow Association.
I hope this letter brings some clarity to this issue. Again, I appreciate the time and effort
put forth by you and others at Jefferson County to resolve this question. Please feel free to
ask for our assistance at any time as this issue moves forward. I can be reached at 360-
407-0271, Jeffree Stewart, our Shoreline Specialist, at 360-407-6521, or Perry Lund at
360-407-7260.
Sincerely,
rv~~
Paula Ehlers
Section Manager
Shorelands & Environmental Assistance Program
PE:PJL:dn
copy: Marco de Sa e Silva, Davis Wright Tremaine
Carol Saber, Port Ludlow Village Council
Linda Hoffman, Ecology
LOG \TEl\Il
# ~~ . ~-
Page _':{_~__of _~._