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HomeMy WebLinkAbout2961-706 &ml~ CVy)11'Y\i1.)~ r~ " fil!Y; ~tf ~~'t\ r t-. rv\hV. G I "I Oil . " . .. r Zt;f.t' I 0~","-_." if) ~~) ""----,,,,'" STATE OF WASHINGTON DEPARTMENT OF ECOLOGY PO Box 47775. Olympia, Washington 98504-7775 · (360) 407-6300 June 17, 2009 Mr. Peter Downey Jefferson County Planning Commission Jefferson County DCD, Long Range Planning 621 Sheridan Street Port Townsend, W A 98368 RE: Amended Ecology Comments on Planning Commission Revised Draft SMP Dear Mr. Downey: Thank you for the opportunity to review the results of the Planning Commission's review and changes to the Preliminary Draft SMP. Ecology's comments follow, some of which in the "General" section are offered for the benefit of citizens unfamiliar with the statutory basis for the comprehensive update now being completed. General: The Shoreline Management Act was enacted by the Washington State Legislature after being affirmed by a vote of the people, and has been in effect since 1972. The Legislature directed the Department of Ecology to work with local governments in a support and review capacity, with each local government as the primary administrator of its own Shoreline Master Program (SMP). Local Shoreline Master Programs are required to be updated periodically in accord with WAC 173-26, Part III, referred to as the Guidelines. The Guidelines were legally adopted by Ecology in 2003. This was after Ecology's initially adopted rule was appealed to Superior Court. Long negotiations led to a formal settlement that was reached between the Washington Department of Ecology, the Washington Environmental Council, the Association of Washington Cities and Counties, and the Business and Industry Association of Washington. Per RCW 90.58, Ecology is the administrator of the Guidelines for comprehensive updates of shoreline master programs. Ecology administers funding to local governments and supports planning efforts. Ecology's job is ensuring SMPs are consistent with the Guidelines. Ecology reviews and must formally approve each locally adopted SMP before it takes effect and satisfies statutory requirements. The Guidelines are written broadly because they apply to all jurisdictions statewide. x~n o Mr. Peter Downey June 17,2009 Page 2 Throughout 2007/ 2008, Jefferson County conducted numerous public outreach forums to educate interested citizens, and to solicit their ideas and concems. Since the Preliminary Draft SMP was introduced in December 2008, many citizens testified and provided written comments on the document. During this same timeframe, shoreline property owners and business representatives were among active participants in Policy and Technical Advisory Groups. Those volunteers worked in good faith to develop a document reflecting Jefferson County interests and values. With consultant support, the group worked through how to address each facet of the SMP to be consistent with the Guidelines. A key principle in the Guidelines is the requirement for local governments to manage their shorelines to achieve No-Net Loss of shoreline ecological functions. The Shoreline Management Act supports reasonable and orderly development in shorelines, and the law explicitly makes residential use a "preferred" use of shorelines. Residential development causes many, and for the most part relatively small, adverse impacts to shoreline ecological functions. Population is increasing and residential use of shorelines will continue doing likewise. Adding up the many small impacts from residential uses, the cumulative effect significantly degrades shoreline ecological resources. The point of No-Net Loss is to regulate the development so ecological resources are protected as the development occurs. Avoiding impacts where possible is required by the Guidelines. Avoiding and minimizing unavoidable impacts of residential development is an essential challenge in drafting an effective SMP. The intent of No-Net Loss is maintaining the current net ecological vitality of Jefferson County shorelines as they are developed, to prevent further degradation of these vital resources across time. Significant Issues / Critical Area Buffers: The Planning Commission changed the Shoreline Buffer width in Shoreline Residential and High Intensity Designated shoreline areas from 150' to 50'. By reducing buffer width in Shoreline Residential and High Intensity-Designated areas, Planning Commission Draft SMP presumably reduces how many lots will be nonconforming. The change would allow more residential development, with fewer restrictions, and more habitat impacts than what the PDSMP had proposed. For the new proposed language, what the cumulative impacts would be has yet to be evaluated. The proposed change from 150 to 50 foot buffers does not provide an accompanying scientific rationale. The change does not appear to address the No-Net Loss requirement, and it does not address the requirement of equal protection to that provided by the Critical Areas Ordinance. This change would make the requirements of the Shoreline Master Program different than those of the Critical Area Ordinance. Where jurisdiction overlaps, per direction of the Washington State Legislature, the Growth Management Act and the Shoreline Management Act are to provide at least equal protection to ecological resources. Mr. Peter Downey June 17,2009 Page 3 The Guidelines do not require uniform buffers per se, allowing that various means of achieving No Net loss may be identified. We see no evidence the Planning Commission has addressed how to compensate elsewhere for the impacts (loss) their proposal to reduce buffers would have. Further justification based on scientific analysis would be necessary before Ecology could approve such a change. Addressing the No-Net Loss equation one way or another will be necessary for the proposed changes in buffer width to be consistent with the Guidelines. Significant Issues/ Conditional Use Requirements: The Planning Commission removed numerous requirements for Conditional Use approval. Some of these are Guidelines requirements, and those will need to be restored. Others are discretional. Some Jefferson County citizens have said they want little or no exercise of regulatory authority from outside the County. Yet Conditional Use is a mechanism allowing greater flexibility in administering the regulations. Without that mechanism, more prescriptive rules and standards are the alternative approach. Conditional Use permit (CUP) requirements in shoreline management are a helpful regulatory tool. Throwing out CUP requirements could make administering the SMP more difficult and/or less effective. We encourage the County to retain Conditional Use requirements for regulating shoreline uses that are other than routine and deserving of greater scrutiny. Addressing the cl1teria at WAC 173-27-160 provides better assurance the project gets designed to minimize impacts. Definitions Section: Definitions are significant. They need to be clear to prevent arguments and misunderstandings in how regulations apply. In the Planning Commission review, we note that very few defmitions were changed or removed. Where they are removed or changed, the reason is unclear. As noted in Ecology's previous comments on earlier versions, in this document there are many questionable definitions listed. Where definitions are found in the RCW or the WAC, those definitions must be applied in the SMP. Only some of the problematic definitions will be addressed in this letter as examples of what can later cause problems when the SMP is being applied. A questionable deletion example is C- 17, Condominium, or G-3, 'Groins" each of which are appropriate term to define in an SMP. The same is true for D- 3, "dedicate." These useful terms in land use are best defined in the SMP so planners and citizens don't have to search for and agree on definitions from other sources. The Planning Commission changed several references in the section on Beach Access Structures from significant "impacts" to "effects." Why this change was deemed necessary is unclear. There should be a definition of "significant adverse effects. . ." if that term is used, so that planners and applicants can refer to it. Mr. Peter Downey June 17,2009 Page 4 The definition for hazard trees was changed to remove the significant words "residence or residential structure." It is one thing to cut trees down when needed to ensure the safety of people in their homes. It is altogether something else to allow cutting down trees to "protect" virtually any structure-which would be the effect of this excision. The term "structure" is very broadly defined in this SMP. Some terms used in the SMP are both unclear and undefined. An example is from page 6-15 where a regulation requires the use of "innovative techniques;' to maintain shoreline vegetation. The requirement is followed by a list of traditional gardening methods like pruning and winnowing. The term "innovative techniques" should either be defined or deleted. An example of where a definition ought to change is # 19, allowed Use. The current wording refers to other kinds of permits, yet is silent on (the more relevant issue of) whether or not an allowed use requires a shoreline permit. Another problem definition is #27, appurtenant use. Normal uses are listed, but a qualifier is added: "but are not limited to..." The added phrase makes a clear definition vague. This lack of clarity will lead to arguments about what is or is not a "normal" appurtenance. The SMP definition should have a list of agreed upon uses that are considered normal. If room for making judgment calls is intended by the Planning Commission, then clear criteria should be specified for doing so. Shoreline Modifications! Beach Access Structures: The Planning Commission added a one-line prohibition of beach access structures on marine feeder bluffs. With the defmition of feeder bluffs currently in the draft, this could be interpreted to mean these structures are prohibited on just about any stretch of shoreline. At the same time, the Planning Commission dramatically changed the regulations of that section, making beach access structures "permitted" in all environment designations. The apparent contradiction needs to be resolved. Making beach access structures permitted outright, especially in all Environment Designations, is a significant change. As noted in our October 2008 comments, this is not consistent with the Guidelines, because net loss of ecological functions is a probable outcome of such a provision. , The PDSMP had more restrictive language and specified criteria. Ecology previously advised that allowing beach access structures anywhere was unlikely to be acceptable under the Guidelines, because different locations have considerably different ecological and physical sensitivity. If these (sometimes quite large) structures are to be allowed, we continue to advise the requirement of Conditional Use approval for adequately discerning where structures may be located with only minor impacts- versus where their construction could destabilize the bluff or harm the beach. The Preliminary Draft SMP made a distinction between public and private structures, which the Planning Commission removed. While the Guidelines do not require this distinction, we think Mr. Peter Downey June 17,2009 Page 5 differentiating these is a sensible approach, and support resuming that as way to encourage more public access and to limit the proliferation of private structures on the shorelines. Residential: The Planning Commission removed policy statements aimed at prevention of residential use cumulative impacts, focused on the associated systems that support a residence.... and another, that was designed to increase consistency between the SMP and the Comp Plan. Both of these policies in the PDSMP Were in keeping with Guidelines requirements. The reason for excluding them is unclear. We recommend these policies be restored. Changing the common line setback was proposed, from a fifty foot gap to a 300 foot gap between existing homes. No justification or evaluation of impacts was presented for this change that would significantly change where new homes can locate, and the change appears inconsistent with No-Net Loss requirements. Also stricken by the Planning Commission was a prohibition of residential structures in channel migration zone areas, and those which could require shoreline stabilization because of their location. The revised language in Article 8 simply states structures in the floodway or on geologically hazardous areas are prohibited. The Guidelines require the concerns addressed by the stricken Article 8 language to be addressed. WAC 173-26-2219(3)(C)(c)(i) is aimed at preventing the unsafe location of new homes, and limiting what activities happen within channel migration zones. This section of the Guidelines also specifies uses more appropriate to areas in danger of flooding, and reflects the . need for protecting ecological functions of rivers. In the Article 8 regulations for primary residences, three PDSMP regulations were removed. One was for requiring view analysis when multi-story residential development exceeding 35' was proposed and limiting heights or regulating design to prevent losses of views from upland residences. The stricken provisions are in accord with Guidelines requirements, and must be restored. A requirement for public open space areas being dedicated with larger than four unit subdivisions was removed. A similar requirement was removed that would require public access open space with multi-unit residential buildings. Both of these provisions are consistent with Guidelines requirements. Alternative means of meeting the requirements at WAC 173-26-221 (4) would need to be added if these stricken provisions are not restored. The Planning Commission changed the status of boathouses associated with single family residences from prohibited to allowed in three environment designations, and removed the requirement for a conditional use approval in the others. This is a significant change we do not believe is consistent with the Guidelines, such as WAC 173-26-231 (2) and WAC 173-26-241 (3)(J), because considerable net loss of ecological functions is a probable outcome of allowing unlimited boathouse development. The probable impacts of making this change have not been evaluated. Mr. Peter Downey June 17,2009 Page 6 As we have noted previously, allowing boathouse structures without regulation will cause adverse impacts to shoreline vegetation and other ecological functions. Because boathouses will be located in the buffer zone they will subtract from the functions and values (vegetation removal, structures degrading habitat, consequent loss of beach shading). Because shoreline areas closest to water are often relatively unstable, placement of structures there will often lead sooner or later to shoreline armoring and other engineered measures to protect the threatened structure. This will compound other adverse impacts. It is also possible this change may generate a need for enforcement actions against illegal use of the boathouses for residential purposes. If Jefferson County is determined it wants shoreline areas to have numerous boathouses intruding in the buffer zone, it will first need to show what the cumulative impacts are-including visual presentations depicting a full build-out analysis of how a shoreline would change, and then showing how the loss of habitat can be avoided and then be mitigated for with provisions of the SMP. Nonconforming Uses: The Planning Commission changed the word "may" to "shall" be allowed- in the Article 6 exception to Critical Area and Shoreline Buffer standards. Contrary to common sense, this change means the County cannot exercise any judgment in cases where a lot that is unsafe for residential development is proposed for such use. The same word change applies to water-oriented uses like boathouses as the wording is changed. This means any lot where development is proposed can be developed regardless of physical or safety limitations. This does not appear consistent with No-Net-Loss of shoreline ecological functions, and does not meet Guidelines requirements. Shoreline Modifications: Mooring buoys/Docks/Piersl Floatsl Boat Launches: The Planning Commission changed requirements under the Natural Designation regulations so that boat launches of all kinds are allowed outright. Language from the PDSMP which described recreational, low-impact launch sites being allowed with a Conditional Use approval was stricken. This change seems inconsistent with guidelines requirements for Natural Designated shorelines at WAC 173-26-211(5)(a) because it would allow other than low-intensity uses and would probably cause net loss of ecological functions. Boat launches are designed and constructed in a wide range of sizes with various materials. While they are a water-dependent use, some configurations can have very significant adverse impacts on ecological functions. Soft, porous beach habitat used by numerous organisms gets replaced with hard, impermeable material. Sediment transport is disrupted, and distribution of beach sands get displaced with accumulations on one side and sometimes maintenance dredging becomes necessary to restore the balance. Mr. Peter Downey June 17,2009 Page 7 Numerous Article 7 provisions from the PDSMP were also stricken, ones that were intended to specifically define criteria for allowing docks and limit their size or configuration to minimize environmental impacts. Those stricken constraints were generally in keeping with Guidelines requirements. Removing them wi1llead to more and larger docks in more locations. This change is not consistent with WAC 173-26-23(3)(b). This section will need to be revisited and corrected to meet Guidelines requirements. Conclusion: The preceding comments are the ones we had time to make - they are neither conclusive nor comprehensive as to all portions of the document. In general, the document as a whole has become less consistent with the requirements of the Guidelines when compared to the PDSMP. Ecology will not approve the SMP as cunently written for the reasons noted. Some provisions not mentioned in this letter would also be of concern or deemed inconsistent with Guidelines requirements. We will continue working with Jefferson County on the sections needing further revision. Ecology guidance on aquaculture is near to completion, and that guidance will be considered as we review that section. Sincerely, \ I Ji.re.e--Sr~;vt+--- .___~~-l------...---...-.-----.-.-------..- Jeffree Stewart Shoreline Specialist Southwest Regional Office 360-407 -6521 JS:dn cc: Paula Ehlers, Ecology Peter Skowlund, Ecology Tom Clingman, Ecology