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HomeMy WebLinkAbout2961-14 COMA-, 17L t\&.-)~V 2.?7 & I @ STATE OF WASHINGTON DEPARTMENT OF ECOLOGY PO Box 47775. Olympia, Washington 98504-7775 · (360) 407-6300 MEMORANDUM DATE: December 1, 2008 FROM: Michelle McConnell, Jefferson County Stacie Hoskins, Jefferson County Margaret Clancy, ESA Adolfson Peter Skowlund, Ecology Bette Renkor, Ecology Rick Mraz, Ecology Tom Clingman, Ecology Paula Ehlers, Ecology Perry Lund, Ecology Barry Wenger, Ecology Tom Young, Attorney Generals \. . Y-.. Jeffree Stewart ~~-U../~ SUBJECT: Results of SMA Policy Discussion with Jefferson County 10/10/08 DEe - 3 2008 TO: This memo is a summary of Shoreline Master Program policy issues that were raised by Jefferson County, and discussed with Washington Department of Ecology at Olympia on October 10, 2008. Prior to the meeting, a memo from Jefferson County identified policy questions which formed the content of our discussion. The iraft SMP (Pre-Planning Commission version) was provided for advance review to Ecology, along with maps of the proposed Shoreline Environment Designations, plus Maps #11, 12, and 17 - 20 from the Shoreline Inventory & Characterization Report. Attendees included: Stacie Hoskins, Michelle McConnell, Margaret Clancy, Gabrielle LaRoche, Peter Skowlund, Paula Ehlers, Perry Lund, Jeffree Stewart, Betty Renkor, Barry Wenger (via telecom) and Tom Young. Jefferson County gave an overview of the SMP project drafting and schedule for near future public process with the Planning Commission. Jefferson County is committed to making this SMP update process successful, recognizing our shorelines are a tremendous resource locally as well as regionally. We have over 250 miles of marine shoreline and a population of about 28,000, with an estimated 114 residents per shoreline mile. By comparison there are 6,920 residents per mile in Snohomish County and 3,253 residents per mile in Pierce County. Jefferson County is certainly in a unique position to further the vision of shoreline planning. Page 1 of9 o Discussion commenced about the use analysis including the Shoreline Environment Designations (SEDs) and the Final Shoreline Inventory & Characterization Report. The group reviewed digital maps of the proposed SEDs, with focus including the intent and application of the (custom designation) Priority Aquatic Discussion continued about implications of applying the Natural designation as proposed along a significant extent of the Eastern Jefferson County marine shore. Requirement for a Conditional Use Permit (CUP) for single-family residential (SFR) development along such shorelines was emphasized. Jefferson County believes their proposed approach is consistent with the SMP Guidelines (WAC 173-26-211.5.A.ii.C) which require a CUP for SFR development. It was noted that Whatcom is working on administrative provisions for SFR on non-conforming lots. Jefferson County also has a 'Conditional Administrative' (Ca) permit process that may be appropriate in such situations (JCC 18.15.040 Table 3-1 Allowable and Prohibited Uses- Categories of Uses). This concept is still in development for inclusion in the SMP. Jefferson Coun Re uest Memo Background: The key policy issues are listed here on which we would like Ecology's feedback: Chapter 1: Section 6 - Critical Areas Adopted By Reference: This section is modeled after the Whatcom County SMP. Is this section consistent with State requirements and acceptable to ECY? Ecology Response Summary: Generally acceptable - PDSMP reference to a specific dated CAO version (not 'or as amended') is preferred. Address the Critical Area Stewardship Plan (CASP) language in the CAO, which relates to proposals that may require variance approval under the SMP. AGO may prefer no/fewer references to JCC 18.22 unless specific to an exception to the adoption by reference. Jefferson County Re uest Memo Chapter 4: Please note that the Environment Designations Chapter does not include management policies as shown in WAC 173-26-211(4). This is because we believe that all of the policy statements (many of which read like regulations) in WAC 173-26-211(5) are clearly articulated elsewhere in the SMP such that repeating them here would create redundancy. As an example, the policy "Single family residential development may be allowed as a conditional use within the "natural" environment if the density and intensity of such use is limited as necessary to protect ecological functions and be consistent with the purpose of the environment" listed in 173-26-211(5)(a)(ii) is clearly stated in Chapter 8, section 8.8.3. Is our approach to developing the designation provisions consistent with State requirements and acceptable to ECY? Page 2 of9 Ecology Response Summary: Yes. In this draft, SED-specific regulations are included as required. There is no requirement for locating those in more than one chapter. Be sure to clearly indicate on the submittal checklist .Jefferson County Re uest Memo Chapter 6: Section 1 - Critical Areas Shoreline Buffers and Ecological Protection: Review CAO-SMP integration provisions. Are these consistent with State requirements and acceptable to ECY? Ecology Response Summary: Generally, yes. The SMP should clearly differentiate between buffers and setbacks - 5' for a setback may be on the small side. Rick Mraz offered the following suggestion for clarification outside the meeting . A 5' building setback is not very practical-should be at least 10' for purposes of maintenance and repair access. Jefferson County Re uest Memo Chapter 6 - Review 1.E.I - Exceptions to Critical Area Buffers, including the allowance for modestly sized single family residential developments on non-conforming lots. This is modeled on the approved Whatcom SMP and is expected to be broadly applied in Jefferson County. We believe this allowance is a fair compromise that will be essential to local approval. Without it, the new buffer requirements will result in a substantial number of variance requests, which will seriously burden County staff and property owners. Will Ecology support this allowance? Ecology Response Summary: Probably not. Protection (part of achieving no net loss) of the natural character of shoreline areas where they are presently undisturbed is a primary goal of the Guidelines and RCW 90.58. The needs and interests of property owners must be attended, but it is thus far unclear if allowing single-family residences on all platted nonconforming lots would provide equivalent protection as required by the CAO. Ecology is concerned that development with this degree of pre-approval on a large number of lots may significantly impair ecological functions in those areas. For Whatcom County, as was pointed out, a similar provision was recently approved by Ecology. Jefferson County has a very different fact pattern. In Whatcom there are fewer affected lots, with different CAO provisions and specific regulations that apply. Because ofthese, Ecology concluded the net effect of What com County's nonconforming provisions would meet the no net loss standard. DEe - 3 Page 3 of9 Jefferson County's initial analysis shows that of39,213 lots in the County, some 8,830 are affected by shoreline jurisdiction with some 3,259 to 3,361 being partially or fully nonconforming to the proposed buffers (give or take a 20' error margin to allow for unmapped OHWM). It will need to be demonstrated how the Jefferson County code protections would make this mechanism comparably protective for Ecology to reach the same conclusion. Jefferson County will prepare a brief description of constraints to further illustrate and justify the proposed approach. Conducting cumulative impacts analysis would be necessary before Ecology could approve this. Under a full build-out scenario, how many new homes would be constructed? The number of . nonconforming lots, their site specific circumstances, plus the overall habitat values of various shoreline reaches with numerous platted lots-and other factors- need to be evaluated. A differential approach to establishing setback/buffers in areas with many platted lots would be one approach. Parameters and criteria would need to be set; an applicant would need to comply with these to avoid the variance requirement. Lowering the number of instances if/when the critical area buffers would be compromised must be achieved. The question is which mechanism is most effective - a shoreline variance or administrative approval? Also notable for this question is the following, provided by Tom Clingman outside the meeting, on a topic briefly discussed in our meeting as a partial solution to avoidance of creating nonconforming lots: . Old largely undeveloped plats appear to be a significant issue in Jefferson County. I assume that many of these are pre-1937 plats. I suggest the County needs to examine the existing development conditions in these old plats - in rural areas where old small-lot plats were not developed, the County has legal authority and perhaps responsibility to require re-platting/plat consolidation to meet current land use plans. . Three AGOs have identified that 1937 is a threshold year on this topic. Prior to 1937, there was no review by the local government of a plat - it was simply filed, whether lots were underwater, inaccessible, etc. In 1937, the law changed to require local government review and approval forplats. The AGOs make clear that it may be appropriate to require pre-37 plats to meet modern requirements for subdivision - i.e. redivision may be required, rather than allowing sale and development of old lots. But the AGOs also note that there will be a wide variation re: development conditions in these old plats, and that this must be considered. . There is clear authority and perhaps obligation for the county to examine whether these old plats should be required to resubdivide under current land use regulations: . Since land platted before 1937 under the territorial platting statute does not meet the requirements of current subdivision law, a county or city lacks authority to accept such plats without conducting at least some review under current law. (AGO 1996.) Page 4 of9 . However, there is no simple one-size approach to these old plats. County review needs to consider the current development conditions, rural vs. urban location, infrastructure investment etc regarding a particular old plat in coming up with the appropriate approach: . Given these variables, we think counties will not be able to avoid a sensitive, particularized analysis of their individual situations, leading to the development of standards that make sense for a particular county. (AGO 1998) . On legal authority, the standard documents are the AGO opinions on the topic. . AGO 1974 No 7 http://www.atg.wa.gov/opinion.aspx?section=archive&id=15352 . AGO 1996 No 5 http://www.atg.wa.gov/opinion.aspx?section=archive&id=9144 . AGO 1998 No 4 http://www.atg.wa.gov/opinion.aspx?section=archive&id=9338 .Jefferson County Re uest Memo Chapter 6 - Review l.E.2 -Water-dependent and Water-related Uses - We believe this is consistent with the guidelines policy of locating facilities that require a direct connection to the water on the shoreline. We have included small boathouses as well as beach access structures in this category as they have little use if located 100 - 150 ft from shore. We believe the regulations that apply to those developments (boathouse and access structures - see chapter 7) are adequate to prevent impacts and prevent abuse ofthis allowance. Will Ecology support this conclusion? Ecology Response Summary: Maybe not. Boathouses are water-dependent rather than water- related, but these structures are an unlisted use in the existing program, and Conditional Use review enables careful scrutiny of impacts on a site-by-site basis. Ecology believes that listing them as an approved use is an invitation to placement of structures on many lots along all Jefferson County shorelines, which would involve significant removal of established native vegetation. This would have impacts to the habitat value and natural character of Washington shorelines. To gain approval of such a sweeping change, the County would need to analyze the cumulative impacts of allowing boathouses, and to prove this provision would not seriously degrade shoreline vegetation, bluff stability, and other ecological functions. In the long term, Ecology also has concerns about the likely conversion of some of these structures into some form of residential use within the critical area buffer, and the limited ability ofthe County to enforce against such conversions. It is noted that in the new Whatcom County SMP, as it is also presently in the Jefferson County SMP, boathouses are currently regulated as unlisted appurtenances. This was a discussion of the differences between types of use: normal, appurtenance, and accessory. The County has proposed dimensional criteria and could consider requiring a Notice to Title upon boathouse approval to limit future non-compliant conversions. If boathouses are treated the same-as o -3 Page 50f9 stairways/stair towers, a CUP would be required and a setback Variance could be allowed. Echoing discussion during the meeting, Rick Mraz offered the following suggestion for clarification outside the meeting: . Chapter 6(1)( E)( 2) cumulative impacts of boathouses a concern. Jefferson Coun 'Re uest Memo Chapter 7: General Comment: Please review the Shoreline Environment Designation Regulations for each type of shoreline modification to see that they meet state guidelines. Section 2 - Boating Facilities: Note that we have not specified a maximum dimensional standard for docks. We have indicated a preferred length of 40 ft for docks'accessory to residential development (section EA) along with criteria for approving longer docks. This is because of the difficulty requiring a standard that will work for the myriad bathymetric and ecological conditions that exist throughout the county on the marine shore. Will Ecology require more specific dimensional standards for docks? Ecology Response Summary: A specific dimensional standard is not necessarily required. However, for cumulative impacts analysis, maximum structure impact scenarios would have to be applied for no-net loss calculations. Ecology believes some kind of quantified requirement is easier for applicants to work from and for current planning staff to administer. The term 'preference' seems difficult to interpret/administer. Also consider how to limit the length and width of docks, or to prohibit them in areas where shallow waters would necessitate too much overwater cover and obstruction of traffic over waters of the state. Jefferson County Re uest Memo Chapter 7 - Note that the program allows up to 20% live-aboards at marinas consistent with DNR standards. Will Ecology defer to DNR standards? Ecology Response Summary: Yes, as long as the parameters for waste disposal are properly established to limit degradation of water quality. Consider criteria/threshold for 'adequate facilities'. Chapter 2 Definitions area adequate to avoid confusion between 'liveaboards' and 'houseboats' . Jefferson Count)' Re uest Memo Chapter 7 - Section 3 - Dredging: It would helpful to allow some maintenance dredging without a CUP (not part of the current draft) as this would increase the likelihood of people actually coming in for a permit. If all dredging, even cleaning out an existing ditch, requires a CUP most people will forgo regulatory review. Will Ecology consider allowing some minor dredging with an SSDP instead of a CUP? Page 6 of9 Ecology Response Summary: Barry Wenger commented that dredging should generally be done with CUP review to ensure that baseline conditions are established with monitoring requirements by which impacts can later be recognized. If some good criteria are presented, then a minor, less procedurally-challenging allowance for dredging could likely be approved. Excavation above OHWM is not considered dredging and is covered by Chapter 7.4 Filling & Excavation provisions. Jefferson County Re uest Memo Chapter 8: General Comment: Please review the Shoreline Environment Designation Regulations for each type of shoreline use to see that they meet state guidelines. Section 2 - Aquaculture This section is the focus of intense scrutiny at the local and regional level. We have attempted to reflect the 2007 Attorney General's Opinion that geoduck aquaculture is not development, therefore does not require a SSDP, and that geoduck tubes are not structures. In our view, tl1e effect of the AGO is that aquaculture activities that involve hanging or floating apparatus (in other words, structures) are more strictly regulated than geoduck. We have attempted to mitigate this by making geoduck culture and floating/hanging culture subject to a CUP. The CUP requirement is likely to be viewed unfavorably and the County needs to explain the basis for creating an onerous permit process for (in the case of geoduck) an activity that the AG concluded has no adverse effects. Will Ecology provide further guidance/support for addressing aquaculture? Ecology Response Summary: An official Ecology position on regulating aquaculture has not been determined, while the agency is actively engaged in various forums dedicated to doing so. The Shellfish Aquaculture Regulatory Committee (SARC), in particular, will conclude this December, and with the resulting research and committee recommendations, Ecology will develop guidance for local Shoreline Master Programs. This process will not be finished, however, for at least another 9 months and therefore is not in synch with the County's timeline "Aquaculture" is defined as the farming or culture of food fish, shellfish, or other aquatic plants or animals but does not include the harvest of free-swimming fish or the harvest of shellfish not artificially planted or maintained, such as the wild stock geoducks on DNR managed lands. The Attorney General's Opinion, which is often noted, has limited and specific application to the variety of issues that the Jefferson County SMP has addressed. It does opine that harvesting geoducks is not development and therefore is not subject to regulation by shoreline substantial development permit (SDP). The AGO is less clear and definite on the subject of cultivating geoduck and other shellfish, as distinct from harvesting. A distinction is made between harvesting of animals that are naturally occurring, and those which are cultivated. The AGO says that tubes for cultivating geoducks are not structures. The AGO does not address many kinds of apparatus used for cultivation;artdso. o -3 Page 70f9 does not extend the definition as non-development beyond what is explicitly noted. AG staff Tom Young confirmed that AGOs are opinions only, and not legally binding on the State or local jurisdictions. Ecology's guidance pre~ently is to note that local jurisdictions have the legal authority to apply regulations to uses in shoreline areas even if they are not defined as development, and may, for example, require Shoreline Conditional Use Permit (CUP) approvals for specified activities. The County is considering an administrative CUP process (Ca) to include criteria, public notice, and public comment and Ecology final approval without a public hearing (similar to dredging above). Discussion also included suggestions to clarify/differentiate between SDP and CUP requirements, and add language that encourages innovative applications of technology/methods to aquaculture production, while ensuring that appropriate restraints may be applied as needed for environmental and social reasons. Also, additional consideration should be given to how 'abutting upland' is determined in cases where tideland parcels are completed surrounded by other tideland parcels. While other agencies at various jurisdictional levels also regulate aspects of aquaculture (ACE, WDFW, WDOH, WDNR) none regulate local land use compatibility. Other discussion included: . SARC direction - research results in the next 3 - 6 years; Committee Report in December, EIS to follow for ~9 - 12 months; Rule change due within 6 months of the report to Legislature; . Differentiation between types of aquaculture methods is an improvement; . Consider prohibition on application of herbicides; add policy to Chapters 6 and 8; . Consider prohibition of GMOs - finfish only? . Review item D.1 -life of the permit; SDP has 5 - 6 years limit, would review and re- permitting be required after that? Consider CASP-like farm plan? Jefferson Coun T Re uest Memo Chapter 8 - Section 4 - Forest Practices Some reviewers feel this section does not go far enough in regulating forest practices; others feel it goes beyond the guidelines requirements. Previous Ecology guidance has indicated that forest practices activities other than tree harvest that constitute development should require a shoreline permit. This would seem to be at odds with the statement in WAC 173-26-242(3)(e) that "Local master programs should rely on the Forest Practices Act and rules implementing the act and the Forest and Fish Report as adequate management of commercial forest uses within shoreline jurisdiction." After all, the FP A regulates road building and other development activities related to forest practice. We understand that conversions and harvests exceeding 30% over 10 years on shorelines of statewide significance are regulated and require SSDPs, but otherwise the criteria and process for determining when the County would issue a shoreline permit are unclear. Will Ecology provide guidance on how this section of the Program should be administered? For an example, when saying that Forest Practices in Conservancy-designated shorelines may be Page 8 of9 permitted subject to policies and regulations, we assume the County is only reviewing the road building and other non-harvest actions. Will Ecology provide guidance on the county's role in forest practices review? Ecology Response Summary: The Guidelines language cited is meant to acknowledge that most activities associated with harvesting trees are in fact regulated by the Forest Practices Act. "Generally defer to..." means just that, acknowledging and avoiding redundant regulatory reviews.... but is NOT meant to imply that a local jurisdiction cannot formulate its own additional and appropriate SMP regulations. Pursuant to RCW 90.58 and WAC 173-26, a local government can establish protections for shoreline areas it deems necessary and appropriate. Discussion noted the 1979 KING COUNTY vs. WEYERHAUSER case in which the authority of local government to regulate forest practices in shoreline areas was expressly upheld. Of note is the following passage: "Nothing in this section shall create, add to, or diminish the authority of local government to prohibit or restrict forest practices within the shorelines through master programs adopted and approved pursuant to chapter 90.58 RCW except as provided in (a) and (b) above." The latter provision (b) deals with specified parameters under which permits for roads are allowed for and also limited. Discussion posed the question "Must the County require a permit for non harvest development or can County defer totally to the FP A?" Ecology confirmed the County must regulate non harvest development and cannot totally defer to FP A. Discussion also noted that CUPs have been a useful tool in forest practice regulation for Whatcom County shoreline areas. Page 90f9