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Michelle Farfan
From: de Sa e Silva, Marco [MarcodeSaeSilva@DWT.COM]
Sent: Wednesday, November 17, 2004 10:30 AM
To: Lund, Perry; Young, Tom (ATG); Stewart, Jeff R.; Toteff, Sally; AI Scalf; faith@lumsdeninc.com
Cc: Michelle Farfan; David Alvarez; Greg McCarry; Mark Dorsey; Lyn Keenan; Ehlers, Paula
Subject: Port Ludlow Associates LLC: November 18 Pre-application Conference
Dear AI, Faith, Perry, Tom, Jeff, and Sally:
Port Ludlow Associates LLC would like to discuss with the Department of Ecology and Jefferson
County the option of using fill within a portion of the water body located within the Plat of Ludlow Bay
Village in order to construct residential structures that the Department contends cannot be "constructed
over water under JCSMP Section 5.160. This is a brief review ofthe applicable Jefferson County
shoreline regulations regarding the filling of water bodies:
1. Definitions: A "landfill" is the creation of or addition to the surface of the land, land covered by
water, or marsh, bog, swamp, or similar water detention areas by the placement of materials. JCSMP
Section 5.100. The water body in question is land covered by water and a water detention area. The
placement of fill material within the water body therefore is a landfill.
2. Landfills Within Water Bodies: Landfills within water bodies are expressly authorized under the
Jefferson County Shoreline Master Program. The master program imposes certain development
standards on landfills within "aquatic and wet land" areas. See JCSMP Section 5.100, page 65. The
water body does not meet the definition of an "aquatic" area under the master program because it is not a
"shoreline of the state." It is neither a shoreline (because it falls within the 20-acre lake exemption) nor
a shoreline of statewide significance, notwithstanding the Department's determination that the water
body is within the shorelands and subject to the residential over-water prohibition. See JCSMP Sections
2.8,2.95,2.96, and 2.97. And this water body also does not meet the definition of a "wet land" area, as
the Department already has determined. See JCSMP Section 2.121. (If the final authority determines
that the water body is an "aquatic" area, then PLA would be required to satisfy the "aquatic and wet
land" performance standards rather than the less demanding "non-aquatic and non-wet land"
performance standards before it is allowed to fill a portion of the water body.)
3. Prohibited Uses and Activities: "Landfills in estuaries, marshes, bogs, ponds, swamps, similar water
retention areas, or other ecologically sensitive areas, except as provided in this Master Program, are
prohibited uses and activities." Id. (emphasis supplied). This does not prohibit landfills within the water
body for two reasons. First, the phrase "except as provided in this Master Program" means that if such
landfills are permitted under the master program, then they are not prohibited. The performance
standards on page 65 of the master program expressly authorize landfills within "aquatic and wet land"
areas as well as "non-aquatic and non-wet land" areas. Landfills clearly are not prohibited within water
bodies unless the applicant fails to satisfy the applicable performance standards. Second, the use of the
word "other" in the phrase "or other ecologically sensitive areas" means that the prohibition applies only
to ecologically sensitive areas (that is, ecologically sensitive estuaries, marshes, bogs, ponds, and so on)
in any event. Otherwise, the word "other" has no meaning in the sentence. As is discussed below, under
the only reported authority to have considered the issue, the water body is not an ecologically sensitive
area. (Whether the water body is or is not an ecologically sensitive area has less importance when it is
remembered that the prohibition provides "except as provided in this Master Program" and that the
master program clearly authorizes landfills within "aquatic an(tt'tfrf'~As as long as certain
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performance standards are satisfied.)
4. Ecologically Sensitive Areas: The water body is not an ecologically sensitive area. In the case of
Brennan v. Winningham, Wash. Shorelines Hearings Board Case No. 89-40 (1990), while interpreting
the Kitsap County shoreline master program (which also uses but does not define the term "ecologically
sensitive areas"), the Shorelines Hearings Board relied on the lack of evidence of actual environmental
impacts and the fact that the area was not identified as an "environmentally sensitive area" by the
county, holding that "an unusual or uncommon degree of ecological sensitivity is contemplated" and
comparing "ecologically sensitive areas" with "environmentally sensitive areas." There is no evidence
that the water body has an unusual or uncommon degree of ecological sensitivity, and as far as we know
Jefferson County has not designated it an environmentally sensitive area. Under the only reported
authority on this issue, it therefore is not an ecologically sensitive area.
We look forward to discussing landfill and other alternatives with you tomorrow. Thank you for your
consideration.
Marco de Sa e Silva
Davis Wright Tremaine LLP
2600 Century Square
1501 Fourth Avenue
Seattle, Washington 98101
Tel: 206-628-7766
Fax: 206-628-7699
E-mail: marcodesaesilva@dwt.com
LOG iTEM
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