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SHORELINE UPDATE

SHORELINE UPDATE. Chelan, Douglas and Okanogan Counties At Wenatchee: June 24, 2011. Understanding Shoreline Updates Legislation and Guidelines. Counties are updating Master Programs Shoreline Management Act Chapter 90.58 RCW Shoreline Guidelines Chapter Chapter 173-26 WAC

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SHORELINE UPDATE

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  1. SHORELINE UPDATE Chelan, Douglas and Okanogan Counties At Wenatchee: June 24, 2011

  2. Understanding Shoreline Updates Legislation and Guidelines • Counties are updating Master Programs • Shoreline Management Act • Chapter 90.58 RCW • Shoreline Guidelines Chapter • Chapter 173-26 WAC • Local Master Programs • Policies and regulations • Objectives • Understand the context and requirements • Aid in effective participation and implementation 2

  3. Douglas County—Amendment Adopted • The Douglas County Regional Shoreline Master Program was adopted by the Douglas County Board of Commissioners by Ordinance TLS #09-08-41B & TLS #08-09-32B, and became effective on August 27, 2009 with the final approval of the Washington State Department of Ecology 3

  4. Chelan County • Public Review Draft August 31, 2010 • Public Comments January, 2011 • Status—Pending • Environmental Review ????? 4

  5. Okanogan County • Resolution 2010-2 forwarded the draft SMP to the Okanogan Board of County Commissioners • 12/20/10 Okanogan County Draft Regional Shoreline Master Program, Title 14 • Goals and policies (Section 6) • Environmental review pending … 5

  6. Look at Important Issues in Each of the Three Jurisdictions • Background and context • Designations and uses • Critical areas and buffers • Public access 6

  7. "Shoreline Management Act of 1971"Historical Perspective—Balanced Approach • Adopted by initiative – three parallel goals • "It is the policy of the state to provide for the management of the shorelines … by" • "planning for and fostering all reasonable and appropriate uses" • "protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life …" • "protecting generally public rights of navigation and corollary rights incidental thereto." RCW 90.58.020 7

  8. "Nisqually Delta Case"It's not just the environment • Case involved a legal challenge to a shoreline permit in DuPont for a large gravel dock adjacent to the Nisqually Delta–Decision by Mr. Justice Dolliver " it is tempting to rhapsodize about the pristine beauty of the Nisqually Delta. It is also tempting to express the wish that time and human hands not disturb its natural tranquility. This is not, however, the task before this court. … " 8

  9. Court Cases Support the "Managed Use" Orientation of Shorelines—Nisqually Delta • In applying the law, we look first to its overall policy. • The SMA does not prohibit development of the state’s shorelines, but calls instead for “coordinated planning ... recognizing and protecting private property rights consistent with the public interest.” RCW 90.58.010 Nisqually Delta Ass’n v. City of DuPont, 103 Wn.2d 720,726, 696 P.2d 1222 (1985), 9

  10. SMA Central ConceptsThe shoreline is used and protected • Balance shoreline use • "all appropriate uses" • with environmental protection • Promote "priority uses" • Single-family residences and their appurtenant structures • Ports • Shoreline recreational uses, including but not limited to parks, marinas, piers, and other improvements facilitating public access to shorelines of the state • Industrial and commercial developments that are particularly dependent on their location on or use of the shorelines of the state and • Other development that will provide an opportunity for substantial numbers of people to enjoy the shorelines of the state RCW 90.58.020 10

  11. Planning For and Fostering All Reasonable and Appropriate Uses … in developing master programs for shorelines of statewide significance, shall give preference to uses in the following order of preference which:     (1) Recognize and protect the statewide interest over local interest;     (2) Preserve the natural character of the shoreline;     (3) Result in long term over short term benefit;     (4) Protect the resources and ecology of the shoreline;     (5) Increase public access to publicly owned areas of the shorelines;     (6) Increase recreational opportunities for the public in the shoreline;(7) Provide for any other element as defined in RCW 90.58.100 deemed appropriate or necessary. Legislative guidelines—RCW 90.58.020 11

  12. Fostering "All Appropriate Uses" (2) The master programs shall include, when appropriate, the following: (a) An economic development element for the location and design of industries, projects of statewide significance, transportation facilities, port facilities, tourist facilities, commerce and other developments that are particularly dependent on their location on or use of the shorelines of the state; RCW 90.58.100(2) • These are the "water oriented" uses 12

  13. Fostering "All Appropriate Uses" (e) A use element which considers the proposed general distribution and general location and extent of the use on shorelines and adjacent land areas for • housing, business, industry, • transportation, agriculture, natural resources, recreation, education, • public buildings and grounds, and • other categories of public and private uses of the land RCW 90.58.100(2)(e) • Note: There is no legislative limitation on allowing other than water-dependent, water-related or water-enjoyment uses; collectively referred to as "water-oriented uses." Such a prohibition is contrary to Section (e) above so long as an adequate record is made explaining the rational. 13

  14. First Question—What is Regulated as SMA Provides a Choice? • Mandatory • Ordinary high plus 200 feet or floodway and associated floodplain 200 feet, whichever is greater, together with associated wetlands … • Optional 100-year floodplain • Latter choice is important as it determines for that portion of the floodplain outside of the mandatory area that is governed by the shoreline growth management regulations 14

  15. Statutory Definition (d) "Shorelands" or "shoreland areas" means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areaslandward two hundred feet from such floodways; and all wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology.     (i) Any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom. RCW 90.58.030(2)(d) 15

  16. Douglas County Shorelands • "Shorelands" or "shoreland areas" means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of Chapter 90.58 RCW; the same to be designated as to location by the Department of Ecology. Any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet there from. Definitions, pp. 139 16

  17. Chelan County Shorelands Definitions, pp. 8-27 • SHORELANDS or SHORELAND AREAS. Those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the Department of Ecology. (RCW 90.58.030(2)(f)) • Does not extend to full 100-year floodplain 17

  18. Lake Chelan Shoreline at Manson 18

  19. Lake Chelan at 97A 19

  20. Okanogan County Shorelands 7. “Shoreline Jurisdiction" or “Shoreline Area” means: A. Where the floodway has been delineated the “Shoreline Jurisdiction” will include the floodway and adjacent land extending landward two hundred feet there from. • Does not include 100-year floodplain • Needs to Include or OHM +200, whichever is greater • "…and all wetlands and river deltas associated with the streams, …" 20

  21. Okanogan County ShorelandsDefinition B. All Other Waters were the floodway has not been delineated: shoreline jurisdiction or shoreline area shall be defined as that those lands lying 200 feet in all directions as measured on a horizontal plane from the ordinary high water mark of all water bodies subject to this SMP and the one-hundred year floodplain and any wetlands associated therewith, which are subject to the provisions of this SMP. • This captures lakes and all streams without floodways, but extends regulation to 100-year floodplain 21

  22. Oroville-Lake Osoyoos 22

  23. Jurisdictions Reflect Legislative Balance from RCW 90.58.020 • Foster all appropriate uses • Protect the environment • Protect navigation • Promote priority uses 23

  24. Douglas CountyStatement of Policy To further assume and carry out the responsibilities established by the Act for the participating jurisdictions, and to adopt and foster the following policy contained in RCW 90.58.020 for shorelines of the State: It is the policy of the State to provide for the management of the shorelines of the State by • Planning for and fostering all reasonable and appropriate uses. • This policy is designed to insure the development of these shorelines in a manner which, while allowing for limited reduction of rights of the public in the navigable waters, will promote and enhance the public interest. • This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the State and their aquatic life, while protecting generally public rights of navigation and corollary rights incidental thereto... 24

  25. Chelan County1.1 Authority and Purpose It is the policy of the state to provide for the management of the shorelines of the state by • Planning for and fostering all reasonable and appropriate uses. • This policy is designed to insure the development of these shorelines in a manner which, while allowing for limited reduction of rights of the public in the navigable waters, will promote and enhance the public interest. • This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while Protecting generally public rights of navigation and corollary rights incidental thereto. From RCW 90.58.020 25

  26. Okanogan County14.15.040 Purpose and Intent C. Promote reasonable and appropriate use of the shorelines which will not jeopardize public and private interests; and D. Protect rights of navigation; and E. Preserve and protect fragile natural resources and cultural significant features; and F. Increase public access to publicly owned areas of the shorelines where increased use levels are desirable; and G. To manage shorelines in a positive, effective and equitable manner; and H. Nothing in these regulations shall constitute authority of any person to trespass or in any way infringe upon private property or upon the rights of private ownership as guaranteed by the U. S. and State Constitutions, land deeds and abstracts. 26

  27. Uses May Be Unnecessarily Limited • Prohibit non water oriented uses • Restrict non water oriented uses • Impose significant constraints on nonconforming uses • Not required by SMA 90.58.100(2)(e) (e) A use element which considers the proposed general distribution and general location and extent of the use on shorelines and adjacent land areas for • housing, business, industry, • transportation, agriculture, natural resources, recreation, education, • public buildings and grounds, and • other categories of public and private uses of the land RCW 90.58.100(2)(e) 27

  28. Douglas CountyDesignations and Uses • Objectives • Shoreline use preference should be given to water-dependent and single family residential uses that are consistent with preservation of shoreline ecological functions and processes. Secondary preference should be given to water-related and water-enjoyment uses. Non-water-oriented uses should be allowed only when substantial public benefit is provided with respect to the goals of the Act for public access and ecological restoration. 28

  29. Industrial Waterfront UsesSpecialty Chemicals at Rockport 29

  30. Okanogan CountyIndustrial Uses B. New non-water-oriented industrial development shall be prohibited in all shoreline designations except when: • The use is part of a mixed-use project that includes water-dependent uses and • Provides a significant public benefit with respect to the Shoreline Management Act's objectives such as providing public access and ecological restoration 30

  31. Pateros Industrial Area 31

  32. Okanogan Industrial Area 32

  33. Wenatchee High Intensity E.2 Designation Criteria A. High Intensity environment designation will be assigned to shorelands • Designated for commercial or industrial use within the City and its UGA • If they currently support or are suitable and planned for high-intensity commercial, industrial, or institutional uses • That either include, or do not detract from, the potential for water-oriented uses, shoreline restoration and/or public access. 33

  34. WenatcheeHigh Intensity Limits A. In the High Intensity environment, first priority should be given to water dependent uses. Second priority should be given to water-related and water-enjoyment uses. • Nonwater-oriented uses should not be allowed except as part of mixed-use developments. • Nonwater-oriented uses may also be allowed in limited situations where they do not conflict with or limit opportunities for water-oriented uses or on sites where there is no direct access to the shoreline, but only if identified in shoreline use analysis or through special area planning as described in WAC 173-26-201(3)(d)(ix)? • [after d (vi)] • Evaluation pursuant to the above criteria, local economic and land use conditions, and policies and regulations that assure protection of shoreline resources, may result in determination that other uses are considered as necessary or appropriate and may be accommodated provided that the preferred uses are reasonably provided for in the jurisdiction 34

  35. Wenatchee Fruit Packing Area 35

  36. Wenatchee Dolco Packaging 36

  37. Summary: "All Appropriate Uses" May Include Non-water Oriented Uses Remember RCW 90.58.100(2)(e): referenced in objectives for master programs (e) A use element which considers the proposed general distribution and general location and extent of the use on shorelines and adjacent land areas for • housing, business, industry • Note: There is no legislative requirement to prohibit other than water-dependent, water-related or water-enjoyment uses; collectively referred to as "water-oriented uses" • Such a prohibition is contrary to Section (e) above so long as an adequate record is made explaining the rationale • Designation exceptions to water-oriented uses must be in the adopted program or you risk creating nonconforming uses 37

  38. Questions / Break • Next Critical Areas and Shoreline Regulations 38

  39. State Law Changed in 2010HB 1653 RCW 36.70A.480(4) (4) Shoreline master programs shall provide a level of protection to critical areas located within shorelines of the state that assures no net loss of shoreline ecological functions necessary to sustain shoreline natural resources as defined by department of ecology guidelines adopted pursuant to RCW 90.58.060. • Prior version said equivalent protection to CAO 39

  40. Problem: Not All Shorelines Are Critical Areas (5) Shorelines of the state shall not be considered critical areas under this chapter except to the extent that specific areas located within shorelines of the state • qualify for critical area designation based on the definition of critical areas provided by RCW 36.70A.030(5) and • have been designated as such by a local government pursuant to RCW 36.70A.060(2) RCW 36.70A.480(5) 40

  41. Not All Shorelines are "Fish and Wildlife Habitat Conservation Areas" (6)(a) "Fish and wildlife habitat conservation areas" are areas that serve a critical role in sustaining needed habitats and species for the functional integrity of the ecosystem, and which, if altered, may reduce the likelihood that the species will persist over the long term. These areas may include, but are not limited to, rare or vulnerable ecological systems, communities, and habitat or habitat elements including seasonal ranges, breeding habitat, winter range, and movement corridors; and areas with high relative population density or species richness. WAC 365-190-030(6)(a) 41

  42. Designation Criteria Tied to "Natural" Not "High Intensity" or "Shoreline Residential" (a) "Natural" environment.     (i) Purpose. The purpose of the "natural" environment is to protect those shoreline areas that are relatively free of human influence or that include intact or minimally degraded shoreline functions intolerant of human use. These systems require that only very low intensity uses be allowed in order to maintain the ecological functions and ecosystem-wide processes. … (B) The following new uses should not be allowed in the "natural" environment:     • Commercial uses     • Industrial uses WAC 173-26 211(5)(a) 42

  43. Critical Area = Natural Designation    (iii) Designation criteria. A "natural" environment designation should be assigned to shoreline areas if any of the following characteristics apply:     (A) The shoreline is ecologically intact and therefore currently performing an important, irreplaceable function or ecosystem-wide process that would be damaged by human activity; WAC 173-26-211(5)(a)(iii) 43

  44. "High-Intensity" EnvironmentWAC 173-26-211(5)(d)    (i) Purpose. The purpose of the "high-intensity" environment is to provide for high-intensity water-oriented commercial, transportation, and industrial uses while protecting existing ecological functions and restoring ecological functions in areas that have been previously degraded. (iii) Designation criteria. Assign a "high-intensity" environment designation to shoreline areas within incorporated municipalities, urban growth areas, and industrial or commercial "limited areas of more intensive rural development," as described by RCW 36.70A.070, if they currently support high-intensity uses related to commerce, transportation or navigation; or are suitable and planned for high-intensity water-oriented uses • Shorelines have typically been modified—roads, railroads, rip rap or bulkheads commonly found here • Naturally functioning conditions typically replaced by the "built environment"—buildings, yards impervious surfaces—not naturally functioning conditions • Proper test is "no net loss" not "buffers" 44

  45. "Shoreline Residential" EnvironmentWAC 173-26-211(5)(f)   (i) Purpose. The purpose of the "shoreline residential" environment is to accommodate residential development and appurtenant structures that are consistent with this chapter. An additional purpose is to provide appropriate public access and recreational uses. (iii) Designation criteria. Assign a "shoreline residential" environment designation to shoreline areas inside urban growth areas, as defined in RCW 36.70A.110, incorporated municipalities, "rural areas of more intense development," or "master planned resorts," as described in RCW 36.70A.360, if they are predominantly single-family or multifamily residential development or are planned and platted for residential development. 45

  46. Alteration of the Shoreline—In Appropriate Areas—is Presumed to Accommodate Preferred Uses Alterations of the natural condition of the shorelines of the state, in those limited instances when authorized, shall be given priority for • Single family residences and their appurtenant structures, • Ports, shoreline recreational uses including but not limited to parks, marinas, piers, and other improvements facilitating public access to shorelines of the state, • Industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state and • other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines of the state RCW 90.58.020 • Priority uses incompatible with definition of critical area 46

  47. Zoning and Shoreline Designations Need to be Consistent (3) Consistency between shoreline environment designations and the local comprehensive plan. As noted in WAC 173-26-191(1)(e), RCW 90.58.340 requires that policies for lands adjacent to the shorelines be consistent with the Shoreline Management Act, implementing rules, and the applicable master program. Conversely, local comprehensive plans constitute the underlying framework within which master program provisions should fit. The Growth Management Act, where applicable, designates shoreline master program policies as an element of the comprehensive plan and requires that all elements be internally consistent. Chapter 36.70A RCW also requires development regulations to be consistent with the comprehensive plan. • Commercial industrial zoning typically inconsistent with standard: if altered may reduce the likelihood that the species will persist over the long term 47

  48. Critical Area BufferEnforcement Issues • Enforcement of a true buffer, rather than setback (no touch zone, restricted by easement, etc.) requires a "particularized" determination that the required buffer area is "reasonably necessary" at that location. • County cannot rely on the Code as the basis for the requirement • If the County has failed to make such a site-specific determination—enforceability is questionable • See Isla Verde v. City of Camas, 146 Wn.2d 740, 49 P.3d 867 (2002)—open space case, but analysis tracks to buffers as well • See also nexus and proportionality discussion that follows concerning public access, but also applies to the requirements for easements, covenants and dedications 48

  49. Enhancement Is Not Required (4) Shoreline master programs shall provide a level of protection to critical areas located within shorelines of the state that assures no net loss of shoreline ecological functions necessary to sustain shoreline natural resources as defined by department of ecology guidelines adopted pursuant to RCW 90.58.060. RCW 36.70A.480(4) 49

  50. Legal Limitations • Under GMA the duty is to protect existing functions and values, not restore habitat previously modified • "Do no harm" is an acceptable standard under GMA Swinomish Tribe v. WWGMHB, Skagit County, 161 Wn.2d 415, 166 P.3d 1198 (2007). "No net loss" is the equivalent for shorelines 50

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