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HomeMy WebLinkAbout2022 09 30 ECY Initial Determination MemoMEMORANDUM TO: David Wayne Johnson, Associate Planner/Project Lead - Jefferson County DCD Josh Peters, Planning Manager - Jefferson County DCD CC: Jackie Chandler, Shoreline Administrator, WA Department of Ecology FROM: Michelle McConnell, Regional Shoreline Planner, WA Department of Ecology DATE: September 30, 2022 SUBJECT: Jefferson County SMP Periodic Review Amendment - Initial Determination of Consistency Sent via email to: djohnson@co.jefferson.wa.us; jpeters@co.jefferson.wa.us; jcha461@ECY.WA.GOV; Use of this Document Ecology’s Determination of Initial Concurrence provides Ecology’s review of the proposed periodic review amendment to the Jefferson County (County) Shoreline Master Program (SMP). This document is divided into two sections: Findings of Fact, which provides findings related to the City’s proposed amendment, amendment history, and the review process; and Initial Determination of the proposed amendment with next steps. Attachment 1 itemizes issues the County needs to and/or can opt to address prior to local adoption and final submittal of the proposed amendment for Ecology’s final review and approval. Attachment 2 shows the required and recommended text revisions as in-line edits to the draft SMP document. Brief Description of Proposed Amendment Jefferson County (County) is conducting a statutorily required periodic review of their Shoreline Master Program (SMP) and has submitted their draft SMP amendment to Ecology for an initial determination as required by the joint review process and consistent with WAC 173-26-104(3). The SMP regulates shoreline use and development activities for more than 700 miles of waterbodies, including approximately 500 miles along some 59 creeks, streams and rivers, 22 miles along 14 lakes, and 250 miles of marine shore of the Pacific Ocean, Strait of Juan de Fuca and Puget Sound. FINDINGS OF FACT Need for amendment Jefferson County’s comprehensive update of their master program was complete in February 2014 and the County’s SMP (adopted under Ordinance No. 07-1216-13) is a separate, stand-alone document. The proposed amendment is needed to comply with the statutory deadline for a periodic review of the SMP pursuant to RCW 90.58.080(4). SMP provisions to be changed by the amendment as proposed The County prepared a checklist and other documentation of the proposed amendment. The amendment will bring the SMP into compliance with requirements of the Shoreline Management Act (SMA) and state rules that have been added or changed since the last SMP amendment, ensure the SMP remains consistent with amended comprehensive plans and regulations, and incorporate revisions deemed necessary to reflect changed local circumstances, new information, or improved data. The Jefferson County SMP contains goals, policies, regulations, administrative provisions, and the official shoreline map. The goals set forth in Article III and the policies of Articles V - VIII are considered an element of the County’s comprehensive plan. Critical area regulations are established in the SMP at 18.25.060 and .270. The boundaries of the Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 2 Shoreline Management Area and Shoreline Designations are established in the SMP at 18.25.200 and .210, and 18.25.870 maps. The revisions proposed are extensive. Submittal materials provided by the County note the proposed SMP amendments address local conditions, retain environmental protection, reduce barriers and unnecessary procedures such as CUPs, allow more flexibility for administrative exceptions, eliminate redundancies and improve clarity, consistent with regulatory reform (Resolution No. 17-19, adopted by the County in March 2019). In addition to the minimum Checklist items to address legislative changes, some 50+ additional issues are addressed: implementation challenges; changes in community values; and improved accuracy, formatting, and updated external citations and internal references. The general document format and the following sections of the SMP are proposed to be amended: GENERAL FORMAT A codified version at Jefferson County Code Chapter 18.25 (JCC 18.25) will replace the current 2014 stand-alone SMP. The Official Shoreline Map of the 2014 Appendix A will be republished. The 2014 Appendix B critical areas ordinance (JCC 18.22) will be replaced by incorporation by reference of the current 2020 CAO (Ord. No. 05-0310-20). Article I. INTRODUCTION • 18.25.020 Applicability – Clarify SMP jurisdiction/application to federal lands; • 18.25.060 Critical Areas Regulations Adopted by Reference – Remove/relocate language that is duplicative of/better presented at .270; Article II. DEFINITIONS • 18.25.100(G) – (W) – Insert new terms including: Gangplank; Important, Sensitive and Unique Areas (ISUs); Lateral; Lift; Marine Spatial Plan for Washington’s Pacific Coast (MSP); Marine Trades; Ocean Disposal Uses; Ocean Energy Production Uses; Ocean Mining; Ocean Research Activities; Ocean Salvage Uses; Ocean Transportation; Ocean Use, New; Ocean Uses; Utilities; Walkway; Water System; and Waterward; • 18.25.100(A) – (U) – Revise definitions for: Appurtenance, Normal; Bulkhead; Community Dock; Conditional Use Permit; Development; Feeder Bluff; Floating House; Floodway; Joint Use Dock; Nonconforming Lot; Parking Lot; Scientific and Educational Facilities; Shared Use; Shorelines of Statewide Significance (SSWS); Substantial Development; and Utility Distribution Lines; • 18.25.100(S) – (U) – Delete definitions for: Site Plan Approval Advance Determination (SPAAD); SPAAD; and Utility Facilities; Article III. MASTER PROGRAM GOALS • 18.25.120 Conservation – Add Comprehensive Plan Framework Goal VI related to climate change; • 18.25.130 Economic Development – Add a goal to support local marine trades; • 18.25.180 Shoreline Use – Add four (4) goals related to climate change and sea level rise, including Comprehensive Plan Policies LU-P-7.1, 7.2, and 7.3, and a goal to support climate change adaptation measures; • 18.25.190 Transportation, Utilities and Essential Public Facilities – Add Comprehensive Plan Policy CF-P-4.3 related to climate change; Article IV. SHORELINE JURISDICTION AND ENVIRONMENT DESIGNATIONS • 18.25.200 Shoreline Jurisdiction and Mapping – Add clarifying text that all in-water areas of West End rivers are designated Aquatic; • Table 18.25.220 – Permitted, Conditional and Prohibited Uses by Shoreline Environment Designation – Revisions include: Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 3 o Conditional Use Header Row - Insert text to clarify the newly added standard Conditional Use Permit (CUP) notation of ‘C’ as separate from existing administrative CUP ‘C(a)’ and discretionary CUP ‘C(d)’ notations; o Aquaculture – Geoduck - Add clarifying text, and change all SED allowance notations from ‘P’ or ‘C(d)’ to ‘C’ so that all new, expanded, or conversion geoduck operations require a standard Conditional Use Permit; o Beach Access Structures - Delete sub header row allowance notations as erroneous/in conflict with the two subsequent rows specific to Public, and Private beach access structures; Change allowance notations for Public in all SEDs except Priority Aquatic from ‘C(a)’ to ‘P’; and for Private in Shoreline Residential and High Intensity SEDs from ‘C(a)’ to ‘P’; o Boating Facilities – Change allowance for Nonresidential Boat Launches in Conservancy SED from ‘C(a)’ to “P”; Change allowance for Mooring Buoys adjacent to Conservancy and Shoreline Residential SEDs from ‘C(a)’ to “P”; o Disposal of Waste Products, Ocean Use – Add new row to prohibit the use as ‘X’ in all SEDs; o Ocean Oil and Gas Uses and Activities – Add new row to prohibit the use as ‘X’ in all SEDs; o Shore Armor/Stabilization - Nonstructural Stabilization – Add text to clarify the use includes bioengineering and biostabilization, per the .100 definition; o Transportation – Add a row for Ocean Transportation to show the use conditionally allowed as ‘C(d)’ in the Priority Aquatic SED, and prohibited as ‘X’ in all other SEDs; o Other Ocean Uses – Add a new sub header row, and two subsequent rows for Ocean Salvage, and Ocean Research, showing both uses conditionally allowed as ‘C(d)’ in Priority Aquatic SED, and prohibited as ‘X’ in all other SEDs; Article V. SHORELINES OF STATEWIDE SIGNIFICANCE • 18.25.230 Adoption of Policy – Clarification of ‘order of preference’; • 18.25.240 Designation of Shorelines of Statewide Significance – Clarification of what waterbodies and portions thereof are designated SSWS; • 18.25.250 Use Preference – Revisions to clarify optimal implementation; Article VI. GENERAL POLICIES AND REGULATIONS • 18.25.270 Critical Areas, Shoreline Buffers, and Ecological Protection – Revisions include: o 1. Policies - Add the no net loss standard of protection for shoreline critical areas; Delete reference to site plan approval advance determinations (SPAADs) that no longer exist; o 2. Regulations – No Net Loss and Mitigation – Clarification of mitigation credits, certified mitigation banks, and agency names; o 4. Regulations – Critical Areas and Shoreline Buffers –  a. Revise the adoption by reference to reflect the current 2020 Critical Areas Ordinance (CAO); Clarify the exceptions to application of the CAO in shoreline jurisdiction;  b. Clarify that both SMP and CAO provisions apply in shoreline jurisdiction;  c. and e. Clarification between shoreline buffers and critical area buffers;  d. Add provisions to allow stormwater tightlines and outfall pipes in the buffer with design standards and mitigation requirements;  f. Delete reference to site plan approval advance determinations (SPAADs) that no longer exist;  i. Clarify the ‘active use’ allowance for buffer usage;  l. Remove the shoreline variance requirement for buffer width reduction that meets CAO’s Critical Areas Stewardship Plan criteria to allow with a shoreline substantial development permit (SDP); o 5. Regulations – Exceptions to Critical Area and Shoreline Buffer Standards – Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 4  a. Clarify the Modest Home Provision nonconforming lot criteria to rely on furthest landward property line rather than the frontage setback;  b. Clarify the Common Line Buffer provision to apply in conjunction with the Modest Home Provision allowance;  e. Add provisions to allow septic repair and replacement in the buffer on nonconforming lots with design standards;  f. Add provisions to allow stormwater improvements in the buffer as a maintenance and repair exemption with criteria; • 18.25.300 Shoreline Setbacks and Height – 2. Regulations – o a. Clarify the 10’ building setback applies to standard shoreline buffers; Add an exception so the building setback does not apply to Modest Home or Common Line structures; o b. Replace the allowance for a 5’minimum and uneven division of the setback area, with a requirement for consistency with underlying zoning standards; o d. Add provisions to allow exceedance of the 35’ height limit with a shoreline variance to accommodate sea level rise, with criteria; • 18.25.310 Vegetation Conservation - 2. Regulations – o b. c. d. and e. Delete ‘new’ so that provisions apply to all shoreline use and development; o c. Delete the allowance for vegetation removal outside the buffer to create lawns or ground cover; o d. Regarding existing native shoreline vegetation, replace ‘maintain’ with ‘retain’, and:  iii. Clarify the allowance for maintenance of existing lawns/landscaping to delete the limitation of ‘residential’, identify as an SDP Exemption, and specify that expansions are excluded;  iv. Clarify tree/shrub trimming allowance for purposes other than view maintenance; Article VII. SHORELINE MODIFICATIONS POLICIES AND REGULATIONS • 18.25.340 Beach Access Structures – o 3. Shoreline Environment Regulations -  b. Aquatic – Change public beach access structure allowance from a conditional use for water-dependent only, to a permitted use for all water-oriented;  c. Natural – Change public beach access structure allowance from water-dependent only, to all water- oriented;  d. Conservancy – Change conditional use allowance for both public and private beach access structures, to allow public as permitted for any water-oriented, and private as conditional use;  e. Shoreline Residential and f. High Intensity – Change conditional use allowance for both public and private beach access structures, to be allowed as a permitted use; o 4. Regulations –  b. Clarify the 12’ height limit is above the ‘top of’ bank/slope, and add location requirement to protect trees/vegetation;  j. Clarify the prohibition criteria are in addition to marine feeder bluff location prohibition described at (2); Delete marine feeder bluff impacts as a prohibition criteria; Clarify wording to ‘shoreline stabilization/structural shoreline armoring’ for internal consistency; • 18.25.350 Boating facilities – Boat Launches, Docks, Piers, Floats, Lifts, Marinas, and Mooring Buoys - o Policy 1.e – Replace ‘shared’ with ‘community or joint use’ throughout for internal consistency with revised definitions; o 2. Shoreline Environment Regulations – a. Priority Aquatic – iii. Residential Accessory Boat Launches, Docks, Piers, Floats, and Lifts – Add an exception to the prohibition of single-user facilities to allow them if a joint-use or Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 5 community structure is demonstrated as infeasible; Clarify the types of shared facilities allowed to include joint use or community docks/piers/floats; o Regulations 3. Boat Launches – Public, and 4. Boat Launches –Private (Ramps and Rails) – Combine both sections into one that addresses boat launches collectively; Delete ‘public’ and/or ‘private’ for provisions applicable to all; Replace ‘public’ with ‘nonresidential’, and replace ‘private’ with ‘residential’ in some provisions for internal consistency with the Use Table;  3.b.iii – Add reference to WAC citations for WDFW Hydraulic Code design and construction standards for marine and freshwater facilities;  4.b – Delete the provision that generally requires use of design and construction methods/technology recognized by state and federal agencies; Delete the preference for rail and track systems over concrete ramps or similar; o 6. Regulations – Docks, Piers, Floats and Lifts – Accessory to Residential Development – (i) Revise the community dock requirement for residential development with 5+ homes/lots, to add more detailed criteria for 2+ homes, adjacent waterfront lots, facility limitation for 3+ lots, access easements/legal agreements; o 8. Regulations – Mooring Buoys –  d. Revise phrasing to avoid and/or minimize impacts to eelgrass and aquatic habitat;  e. Add an exception to helical anchor requirement to allow USACE-approved alternatives for consistency with state agencies;  h. Added provisions to encourage applicants to obtain USACE permits prior to state and county permits, and to allow residential lots 2 buoys per boat; • 18.25.400 Restoration – Add a regulation that allows relief from SMP requirements due to a shift in OHWM resulting from a shoreline restoration project; • 18.25.410 Structural shoreline armoring and shoreline stabilization – o 4. Regulations – Subdivisions and Existing Lots without Structures – Add use of geotechnical analysis; o 5. Regulations – New or Expanded Shoreline Armoring, When Allowed – Add preference for soft approaches unless demonstrated insufficient; Clarify geotechnical report requirements; o 10. Regulations – Shoreline Stabilization (including bioengineering and biostabilization) – Add new provision that requires nonstructural/soft approaches to meet the policies, SED, and application requirements; o 11. Regulations – Application Requirements – Clarify site plan details; Add geotechnical report requirements; Article VIII. USE-SPECIFIC POLICIES AND REGULATIONS • 18.25.430 Agriculture – Add Comprehensive Plan Policy NR-P-8.6 as a policy regarding climate change; Clarify Regulation (3.a) about exempt activities; • 18.25.440 Aquaculture – Revise provisions related to geoduck, floating/hanging aquaculture, including: o 3. Shoreline Environment Regulations – Add distinction regarding new geoduck aquaculture; Relocate finfish aquaculture siting location maps to later section; o 4. General Regulations – Add distinction regarding non-geoduck aquaculture for permitting expansion of existing; Add new permit requirement for any expansion of existing geoduck aquaculture for the expanded or total area; Added limitations for floating/hanging aquaculture equipment, 3’ – 6’ height limit for stored items, daily removal and regular operations materials, and visual impact considerations; Added limitations for predator control/exclusion devices; Added limitations for discarded/abandoned materials, structure and equipment identification/repair/removal, and waste accumulation; Relocated provision to avoid spread of disease, nonnative species impacts, and protect aesthetic qualities; Added provision regarding tribal treaty rights coordination and tribal notification of permit review; Added provision to limit in-/overwater processing, except sorting, culling and washing after harvest; Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 6 o 5. Finfish Regulations – Relocate operations plan details, and option for third-party peer review to general application requirements; Relocate predator control limitation to separate section; Clarify language regarding waste management and relocate discarded materials provision to general regulations; o 6. Geoduck Regulations – New section; Add CUP requirement for new and expanded geoduck aquaculture; Add CUP requirement for ongoing planting and harvest that affects public use/access not previously considered; Add clarification that a single CUP may apply to multiple sites of the same application; Add CUP requirement for monitoring and reporting to ensure permit compliance; Add provision to consider WAC siting and operation factors for permit conditions; Add siting and design limits regarding sediment, topography, access, clearing and grading; Add allowance for nighttime and weekend on-site operations with noise/light impacts mitigation requirement; o 7. Application Requirements – Add clarification regarding redundancy, submittal of other state/federal permit information, omission of information demonstrated as not applicable; Add site plan details requirement; Add baseline ecological survey requirement; Add operational plan requirement; Add materials, tubes and predator exclusion device as triggers, and visual analysis details for photo analysis/simulation, .25 mile distance, tidal conditions, public and residential views, and impact reduction measures; • 18.25.450 Commercial Use - Add a Non-water Oriented Use/Development regulation to clarify about scientific and educational facilities including those for maritime education and training; Clarify/add details regarding DNR, DOH, DFW, NPDES, USACE and ESA application materials; • 18.25.460 Forest Practices – Add clarification to Regulation (4.b) about timber-cutting only activity is not development and does not require SDP or Exemption; • 18.25.500 Residential – Change term ‘floating residence’ to ‘floating dwellings’ to include both ‘floating homes’ and ‘floating on-water residences’ for internal consistency with revised Definitions; Add an SED Regulation to clarify that beyond an existing single-family residence (SFR) established by SDP Exemption, any additional SFR on the same parcel requires permitting as an accessory structure; • 18.25.520 Transportation – Add clarification to Policy (1.h) about parking lot amenities such as lighting, charging stations, payment meters, allowed as accessory; Add Comprehensive Plan Policy TR-P-9.7 as new Policy (1.l) regarding climate change; Article IX. PERMIT CRITERIA AND EXEMPTIONS • 18.25.560 Exemptions Listed – Correct the out-of-date Fair Market Value threshold; Add a WAC citation for Residential Docks; Add clarifying text about Watershed Restoration Project terms; Add Habitat Restoration sub header and replace criteria with reference to WAC citation; Add the ADA Retrofit exemptions; • 18.25.600 Unclassified Uses – Clarify allowance as discretionary conditional use ‘C(d)’; Article X. ADMINISTRATION AND ENFORCEMENT • 18.25.620 Permit Application Review – Change SDP from Type III to Type II; Clarify standard conditional use permit (‘C’) and variance are Type III; Relocate the .630(19) provision up to coordinate timing of shoreline and other permits, and to ensure written findings for all shoreline approvals and permits documenting compliance; Add a provision about SMA/SMP exceptions that don’t require local review or shoreline permits; • 18.25.630 Minimum Permit Application Requirements - Relocate the (18) Administrator allowance to change or waive the (1) requirement for applicants name, address, contact information, and representative up to an introductory clause that applies broadly to all application requirements; • 18.25.650 Notice of Application and Permit Application Review – Clarify Type II and III noticing requirements; Add provisions to establish special permit review procedures for WSDOT projects; • 18.25.660 Nonconforming Development – Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 7 o 8. Expansion/Enlargement of SFR without CUP or Variance – Clarify as ‘minor’; Delete landward limitation; Add SDP requirement; Establish general standards to delete lateral and waterward limitations, clarify footprint or volume regarding critical area impacts, and replace increased height with any expansion regarding view impacts; Add allowance for limited waterward expansion within existing footprint of foundation or impervious surface with SED, square footage, location, and buffer enhancement planning criteria; Clarify allowance for non- waterward expansion up to 10% based on general standards; Add detailed planting standards for buffer enhancement as mitigation for allowed SFR expansion including invasive removal, mixed species diversity, minimum spacing, allowance for plan prepared by applicant or professional, planting plan details and monitoring requirements; o 9. Expansion/Enlargement with CUP – Clarify SFR allowance as ‘moderate’, ‘non waterward’ and as a ‘discretionary’ conditional use; Delete reference to vertical, lateral, and landward expansion to phrase generally as not waterward; o 10. Expansion/Enlargement with Variance – Clarify waterward or vertical SFR expansion; Add requirement for buffer enhancement planting per newly established standards; o 11. Establish existing residential structures that don’t meet current standards as conforming unless/until any redevelopment /expansion occurs; • 18.25.750 Notice of Decision, Reconsideration and Appeal – Add a provision for permit filing requirements; • 18.25.840 Master Program Amendments – Revise the provision to include periodic review requirement, option for locally-initiated amendments, and 14-day effective date after Ecology final action; Article XI. OFFICIAL SHORELINE MAP • Rename the article as ‘Shoreline Mapping’ to reflect revisions that broaden the scope of maps included; • 18.25.880 Maps Illustrating SED Allowance for In-Water Finfish Aquaculture – Add a new provision for the four (4) map images showing siting locations moved from .440; • 18.25.890 List of SMP Waterbodies – Add a new provision that establishes the required list of SMA jurisdictional waterbodies including streams/rivers and lakes; Article XII. OCEAN MANAGEMENT • Add a new section with all provisions required to implement ORMA and the MSP, including: o 18.25.900 Applicability and Administration o 18.25.910 Ocean Management Policies o 18.25.920 Ocean Management Regulations o 18.25.930 Important, Sensitive and Unique Areas (ISUs) Designation Related Code Revisions - Additional related revisions are proposed for sections of the Unified Development Code beyond the SMP and are outside Ecology’s review authority, including: • JCC 18.40 Permit Application and Review Procedures/SEPA Implementation - Section .040 Table 8-1 Permit Decision Types; and • JCC 18.30 Development Standards – Section .050 Table 6-1 Density, Dimension and Open Space Standards. Amendment History, Review Process The County prepared a public participation program in accordance with WAC 173-26-090(3)(a) to inform, involve and encourage participation of interested persons and private entities, tribes, and applicable agencies having interests and responsibilities relating to shorelines. An important element of the public participation plan is the County’s SMP Periodic Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 8 Review project website1. A project description, draft documents, and public meeting details were posted online. Due to the COVID-19 pandemic, the County held public meetings in-person and/or virtually (via Go To Meetings and Zoom platforms) through October 2021, including status briefings at Planning Commission and Board of County Commissioners (BoCC) open public meetings. The County’s public engagement efforts also included a story map and community survey2 and SMP Task Force to gather input from a broad range of interested parties. The interactive story map depicted shoreline environment designations and shoreline permits issued 2015 - 2020. The County received about 83 survey responses that helped identify possible issues to address in the SMP, outreach & education efforts, and the permitting process. An SMP Task Force of 12 stakeholder volunteers was appointed by the Board of County Commissioners to serve as a sounding board during early project scoping. The Task Force was assembled and met with County’s project team approximately a dozen times between August and December 2020; a final Scoping Document describes the group’s identified issues and proposed actions. The County used Ecology’s Periodic Review Checklist of legislative and rule amendments to review amendments to chapter 90.58 RCW and department guidelines, that have occurred since the master program was last amended, and determine if local amendments were needed to maintain compliance in accordance with WAC 173-26-090(3)(b)(i). The County also reviewed changes to the Comprehensive Plan and development regulations to determine if the Shoreline Master Program policies and regulations remain consistent with them in accordance with WAC 173-26-090(3)(b)(ii). The County considered whether to incorporate any amendments needed to reflect changed circumstances, new information or improved data in accordance with WAC 173-26-090(3)(b)(iii). The County consulted with Ecology and solicited comments throughout the review process including opportunities to comment on draft materials from November 2020 to February 2021. Joint Review - The County provided notice to local parties, including a statement that the joint public hearing was intended to address the periodic review, in accordance with WAC 173-26-090(3)(c)(ii). The County’s notice of the hearing was published in the Peninsula Daily News on May 16 and 17, 2021. Ecology distributed notice of the joint comment period to state interested parties on May 10, 2021, including separate notice to the Hoh, Jamestown S’Klallam, Port Gamble S’Klallam, Quileute, Quinault, and Skokomish Tribes inviting comment and participation. The County and Ecology held a joint local-state comment period on the proposed amendments following procedures outlined in WAC 173-26-104. The comment period began on May 17, 2021 and continued through June 16, 2021. A joint public hearing before the County Planning Commission was held on June 16, 2021 via Zoom. Two (2) people provided verbal testimony. The County accepted public comments on the proposed SMP amendments during the 30-day public comment period. Written comments were submitted by six (6) individuals, two (2) organizations (environmental, and industry) and two (2) Tribes on the proposed amendments. The County prepared a Comment Response Matrix to summarize issues raise, including: • Climate change/sea level rise • Cumulative impacts • Development allowed in the buffer • Forest practices 1 https://co.jefferson.wa.us/1481/Shoreline-Master-Program-Periodic-Review 2 https://berk.maps.arcgis.com/apps/MapSeries/index.html?appid=e978c79bfa5a4eaea19bb33b92e092e6 • Geoduck aquaculture • Liberal construction • Marine trades • Mining Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 9 • Mooring buoys • Nonconforming single-family residential development • Property damage due to natural processes • Shoreline armoring • Shoreline buffers & functional isolation • Tribal treaty rights • Water quality and/or quantity Ecology finds the County considered whether to incorporate any amendments to reflect changed circumstances, new information, or improved data, as provided or raised during the comment period. The County determined, and Ecology concurs, that additional amendments are warranted at this time based upon the significance of this information and the existing SMP provisions3. Upon review and consideration of the comments, the County prepared a revised version Draft SMP including numerous additional proposed amendments beyond the scope of the joint review draft. While Planning Commission meetings were open to the public, the revised version SMP was not released for formal public review and comment prior to initial submittal. Planning Commission deliberated the SMP at five (5) regular meetings (July 7 and 21; August 18; September 1; and October 6) providing guidance to the Project Team of staff and consultants for further revisions. The revised Draft SMP amendments were received by Ecology on October 11, 2021 for initial state review. The submittal was verified as complete on November 5, 2021. This began Ecology’s review and initial determination. Ecology review process Ecology has reviewed the initial submittal materials provided. During review, Ecology staff met with County staff and consultants to better understand the intent and details of some proposed amendments to provide us guidance in preparing our feedback. Ecology has reviewed and considered the comments received during the joint public comment period and public hearing along with the County’s response. Consistency with Chapter 90.58 RCW The proposed amendments have been reviewed for consistency with the policy of RCW 90.58.020 and the approval criteria of RCW 90.58.090(3), (4) and (5). The County has also provided evidence of its compliance with SMA procedural requirements for amending their SMP contained in RCW 90.58.090(1) and (2). Consistency with applicable guidelines (Chapter 173-26 WAC, Part III) The proposed amendment has been reviewed for compliance with the requirements of the applicable Shoreline Master Program Guidelines (WAC 173-26-171 through 251 and 173-26-020 definitions). This included review of a SMP Periodic Review Checklist, which was completed by the County. Consistency with SEPA Requirements The County submitted evidence of SEPA compliance in the form of a SEPA checklist and issued a Determination of Non- Significance (DNS) on November 1, 2021 for the proposed SMP amendments. The record indicates notice of the DNS was published in the Peninsula Daily News on May 16 and 17, 2021. Summary of Issues Identified by Ecology as Relevant to Its Decision Ecology is required to review all SMPs to ensure consistency with the Shoreline Management Act (SMA) and implementing rules including WAC 173-26, State Master Program Approval/Amendment Procedures and Master 3 WAC 173-26-090(3)(b)(iii) Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 10 Program Guidelines. WAC 173-26-186(11) specifies that Ecology “shall insure that the state’s interest in shorelines is protected, including compliance with the policy and provisions of RCW 90.58.020.” Based on review of the proposed amendments to the SMP for consistency with applicable SMP Guidelines requirements and the Shoreline Management Act, and consideration of supporting materials in the record submitted by the County, the following issues remain relevant to Ecology’s final decision on the proposed amendments to the County’s SMP, with both required and recommended changes identified in Attachment 1 and Attachment 2, consistent with the SMA and applicable guidelines. Required changes identified include the following: Definitions • .100(1)(aa) Appurtenance, normal - The definition as proposed confounds residential development and other primary uses, and is not consistent with WAC 173-27-040(2)(g). • .100(6)(m) Floating dwellings – The definition as proposed lacks the term ‘vessel’ and is not consistent with RCW 90.58.270; • .100 Ocean oil and gas uses and activities –The term is used in proposed revisions to the .220 Use Table and Article XII Ocean Management, but no definition is proposed, consistent with WAC 173-26-360 and RCW 43.143; Shoreline Critical Areas Provisions Overall, the proposed incorporation of the 2020 CAO as shoreline critical areas provisions is largely consistent but Ecology review identified the following issues: • .270(4)(a) CAO incorporation exceptions/modifications – The proposed revision to incorporate the current 2020 CAO by reference lacks specificity about which provisions are excluded or modified for application in shoreline jurisdiction, consistent with WAC 173-26-191(2)(a)(ii)(A), 173-26-221(2), and RCW 36.70A.480; • Global - Reference to shoreline critical area provisions – The phrasing throughout the document that refers to the critical areas provisions as external to/separate from the SMP is inaccurate since incorporation by reference of the CAO establishes those critical area protections as shoreline provisions; shoreline critical areas are regulated solely by the SMP, as established by RCW 36.70A.480; • .270(4)(l) Buffer adjustment via CASP – The proposed change from a Variance to an SDP for adjustment of a shoreline buffer using the CAO alternative protection standards is not consistent with requirement for deviation from dimensional standards in extraordinary circumstances; Specific Use Provisions • .410 Structural Shoreline Armoring – As related to proposed revisions, the existing allowances for new and replacement or expansion of existing are not consistent with the standards of WAC 173-26-231(3)(a)(iii); • .440 Aquaculture, including Geoduck – The proposed revisions incorrectly assign tribal coordination to the applicant, and would require a CUP based on standards intended to require an SDP, inconsistent with WAC 173- 26-241(b)(iii); • .500 Residential – As related to proposed revisions, the existing reference to residential use as preferred is inconsistent with WAC 173-26-241(3)(j) that identifies the use as a priority; Nonconforming Development • .660(8) Minor SFR Expansion – The proposed revision to require an SDP for this prescriptive exception for further buffer encroachment is inconsistent with the allowance for SFR development as an exemption, per RCW 90.58.030(3)(e)(vi), WAC 173-27-040(2)(g), and SMP .560; • .270(5)(e) Nonconforming septic; and (f) Nonconforming stormwater - The proposed revision to establish an exemption for septic repair in the buffer exceeds local authority since exemptions are limited to those established by statute, but the SMP can clarify what actions would qualify under the existing exemption for normal repair and maintenance, including the limited allowance for replacement; Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 11 Jurisdiction and Mapping • .890 List of Waterbodies – This newly proposed section with Figures .890-1 Streams/Rivers and -2 Lakes does not include a complete and accurate listing of jurisdictional waterbodies, consistent with WAC 173-18-044 and 173- 20-044. Recommended Changes The SMP Guidelines at WAC 173-26-191(2)(a)(ii)(A) require that SMPs “shall be sufficient in scope and detail to ensure the implementation of the Shoreline Management Act, statewide shoreline management policies of this chapter, and local master program policies.” Ecology recognizes the initial submittal draft SMP is still a work in progress and, therefore, this initial determination is limited. Many of the proposed revisions need further consideration and development to be more fully-formed before final submittal. Ecology identifies issues of concern in Attachment 1 and we will remain available to assist the County after issuing this initial determination to help the County craft its response. Ecology provides extensive suggested edits in Attachment 2. Some are simple fixes to punctuation, grammar and typos, but many of these are not intended as finalized or definitive changes. The County needs to consider additional factors and refine the proposed amendments to ensure accuracy and clarity and to avoid internal conflicts and unintended results. We welcome and strongly urge the County to continue coordination with Ecology during staff work and Planning Commission review before proceeding with the Board of County Commissioners’ process for local adoption, prior to final submittal. The following is a partial summary of sections needing further consideration and refinement: • .100 Definitions – Boating Facilities; Community Dock/Pier/Float; Dock; Float, Joint Use Dock/Pier/Float; Lateral; Nonconforming Lot; Parking Lot; Recreation, Shared Use; Shoreline; SSWS; Substantial Development; Utilities; Utility Distribution Lines; Walkway; • .220 Use Table • .250 SSWS • .270 Building Setbacks; Buffer Usage; Modest Home Provision; and Common Line Buffer • .310 Vegetation Conservation • .340 Beach Access Structures • .350 Boating Facilities • .520 Transportation & Parking • .560 Exemptions Listed • .590 CUP criteria • .610 Administrative interpretations • .620 Permit review • .650 Permit process • .660 NC SFR Expansion • Appendix A Maps • Cumulative Impacts • General Modifications Policies Bill Format – The SMP Submittal Requirements at WAC 173-26-110(2) require amended text be shown in strikethrough/ underline, often called ‘bill format’. Throughout the Draft SMP, many revisions appear to show iterative edits to earlier draft language so that text is presented in both underline and strikethrough, and edits/comments by four different County authors are displayed in different colors. For consistency with WAC and for transparency of the amendment process, the final submittal SMP must ensure that only the changes proposed to the current 2014 SMP are shown in strikethrough/underline. The document will also benefit from a more unified approach to showing changes proposed by a single author. Per local discretion, the County may opt to keep separate documentation showing the iterative progression of all proposed changes. Final Document Polish - The Periodic Review Checklist is a required companion to the Draft SMP Amendments, and needs to keep pace to accurately reflect the proposed amendments. All proposed changes to the current 2014 SMP need to be reflected in the Periodic Review Checklist for transparency of the amendment process. Ecology encourages the County to further refine and improve the final submittal documentation. Comment bubble explanation/rationale in the draft SMP is better relocated to the PR Checklist or to staff reports referenced in the PR Checklist. Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 12 Procedural and Public Comment Concerns While a comment period and public hearing were conducted, additional formal public comment opportunities might be warranted. The initial submittal Draft SMP we’ve reviewed for this initial determination includes substantively different proposed amendments from the earlier joint review Draft SMP provided for the joint public comment and hearing. We recognize the document is still in process and likely to further evolve prior to local adoption so that the final submittal proposed amendments fully consider and reflect the issues raised herein. Further, we recognize the procedural misstep at the June 2021 joint public hearing when the staff report presented before accepting verbal testimony included new proposed amendment language in response to public comments already received; the public in attendance expressed confusion and concern in the moment. County staff sent a follow- up clarification to Planning Commission explaining the intent was to demonstrate the project team’s proactive responsiveness for transparency of the amendment process. The follow-up noted that no further public hearings were required for the periodic review process but that the Board of County Commissioners could opt to solicit additional public comment. The follow-up also encouraged stakeholders and interested parties to attend future Planning Commission meetings and provide additional input. The document we’ve reviewed includes further revisions that did not get public review such that Ecology can’t consider comments on all proposed revisions. Without being able to consider public comments on all the proposed amendments, Ecology’s initial determination is limited. To remedy these procedural concerns, the County and Ecology may opt to conduct an additional joint public comment period prior to final submittal, or Ecology can shift to the WAC 173-26-100 Standard Local Process and conduct a state comment period upon receipt of the final submittal. Additional Consideration of Public Comments Based on Ecology’s review of the comments received and the County’s 10/6/21 Comment Response Matrix, Ecology recommends the County consider the following issues before final submittal (listed by response matrix numbering): • 2. Showalter – Concern that commercial geoduck practices impact some of the most ecologically important tidelands. o Ecology Review: The SMP establishes the locally-tailored Priority Aquatic shoreline environment designation at 18.25.210(3)(a) based on criteria including: (F) Important intertidal and subtidal shellfish areas (clam, oyster, crab, shrimp, and geoduck). This criterion makes no distinction between naturally occurring populations and aquaculture so that both would justify such an area as ‘important’. County may consider edits to clarify the designation criterion. • 6. Wold – Concern about ‘functionally isolated’ exception to required buffers; suggested deletion/needs clarification. o Ecology Review: The SMP establishes this buffer exception at 18.25.270(4)(c) and this previously approved language is not proposed for change. County may consider edits to clarify if this exception applies to both shoreline and critical area buffers; • 9. PGST 6/16 – Provided photo analysis that shows 37% of lots with structures in the 150’ buffer; Concern that beach cabin expansion on western shore of Hood Head will result in use conflicts with current shellfish harvest activities. And expansion of existing nonconforming structures at Kilisut Harbor and Mystery Bay will impact shellfish, forage fish, salmon, and ecological functions; Request for SMP to set strict square footage and other limits for expansion of nonconforming structures. o Ecology Review: County may include this photo analysis as part of the evaluation/rationale related to proposed revisions to nonconforming allowances at 18.25.270 and .660; County should consider impacts, mitigation, and prescriptive standards for allowed expansions to nonconforming structures; Jefferson County SMP Periodic Review - Initial Determination of Consistency September 30, 2022 13 Ensure no internal inconsistency between increased allowance for nonconforming SFR expansions and preferred water-dependent use and development. Ecology Required and Recommended Changes Ecology has determined the proposed SMP amendment is largely consistent but we have identified elements that appear inconsistent with applicable laws and rules. The intent of this initial review is to provide local government an opportunity to consider Ecology’s analysis before local adoption. We have attached suggested approaches to address our concerns. Ecology has identified thirteen (13) required changes and forty (40) recommended changes to the SMP amendment for consideration by the County, found within Attachment 1 as items REQ-1 through REQ-13, and Rec-1 through Rec-40 also presented in Attachment 2. The required changes are needed for consistency with statue and rule, and the recommended changes would improve implementation and reduce confusion for both applicants and practitioners. Findings. Ecology finds that Attachment 1, required change items REQ-1 through REQ-13 are needed for consistency with the SMA and administrative rules, and items Rec-1 through Rec-40 recommended changes, if implemented, would be consistent with the policy and standards of RCW 90.58 and the applicable guidelines. INITIAL DETERMINATION The following constitutes Ecology’s written statement of initial concurrence, consistent with WAC 173-26-104(3)(b)(ii): After review by Ecology of the complete record submitted and all comments received, Ecology has determined that the County’s proposed amendment, including the required and recommended changes identified in Attachment 1, is consistent with the policy and standards of RCW 90.58.020 and RCW 90.58.090 and the applicable SMP guidelines (WAC 173-26-171 through 251 and .020 definitions). Next Steps As described under WAC 173-26-104(4), the next step in the approval process is for your jurisdiction to consider the required and recommended changes identified by Ecology and formally adopt the amendment through resolution or ordinance, then send the final SMP submittal for formal agency approval as outlined in WAC 173-26-110. We urge the County to consider and address the procedural issues noted above prior to local action.