29.35.080 Exemptions from shoreline substantial development permits

29.35.080 Exemptions from shoreline substantial development permits.

(1) An exemption from the shoreline substantial development permit process is not an exemption from compliance with the SMA or this SMP, or from any other regulatory requirements. All proposed uses, activities, or development occurring within shoreline jurisdiction must conform to the intent and requirements of Chapter 90.58 RCW, the SMA, and this SMP, whether or not a permit or other form of authorization is required.

(2) Letters of exemption shall be issued by the Shoreline Administrator when an exemption applies or when a letter of exemption is required by the provisions of WAC 173-27-050 and as follows:

(a) Any person claiming exemption from the substantial development permit requirements shall make an application to the Shoreline Administrator for such an exemption in the manner prescribed by the Shoreline Administrator, except that no written statement of exemption is required for emergency development pursuant to WAC 173-27-040(2)(d).

(b) The Shoreline Administrator is authorized to grant or deny requests for statements of exemption from the shoreline substantial development permit requirement for uses and developments within shorelines that are specifically listed in subsection (4) of this section. The statement shall be in writing and shall indicate the specific exemption of this SMP that is being applied to the development and shall provide a summary of the Shoreline Administrator’s analysis of the consistency of the project with this SMP and the SMA. The letter shall be sent to the applicant and maintained on file in the offices of the Shoreline Administrator.

(c) Statements of exemption may contain conditions and/or mitigating measures of approval to achieve consistency and compliance with the provisions of this SMP and the SMA.

(d) A denial of an exemption shall be in writing and shall identify the reason(s) for the denial. The Shoreline Administrator’s decision may be appealed pursuant to PMC 29.35.120, Appeals.

(e) Exempt activities requiring a JARPA shall not be conducted until a statement of exemption has been obtained from the Shoreline Administrator.

(a) Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemption from the shoreline substantial development permit process.

(b) A development or use that is listed as a conditional use pursuant to this SMP, or is an unlisted use, must obtain a shoreline special use permit even though the development or use does not require a shoreline substantial development permit. When a development or use is proposed that does not comply with the bulk, dimensional, and performance standards of this SMP, such development or use can only be authorized by approval of a shoreline variance permit.

(d) If any part of a proposed development is not eligible for exemption, then a shoreline substantial development permit is required for the entire proposed development project.

(e) The Shoreline Administrator may attach conditions to the approval of exempted developments and/or uses as necessary to ensure consistency of the project with the SMA and this SMP. Additionally, nothing shall interfere with each responsible local government’s ability to require compliance with all other applicable laws and plans.

(4) The City shall exempt from the shoreline substantial development permit requirement the shoreline developments listed below:

(a) Any development of which the total cost or fair market value does not exceed $6,416 or as adjusted by the State Office of Financial Management, if such development does not materially interfere with the normal public use of the water or shorelines of the state. For purposes of determining whether or not a permit is required, the total cost or fair market value shall be based on the value of development that is occurring on shorelines of the state as defined in RCW 90.58.030(2)(c). The total cost or fair market value of the development shall include the fair market value of any donated, contributed, or found labor, as well as equipment, or materials.

(b) Normal maintenance or repair of existing legally established structures or developments, including damage by accident, fire, or elements. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development, including, but not limited to, its size, shape, configuration, location, and external appearance and the replacement does not cause substantial adverse effects to shoreline resources or environment.

(c) Construction of a normal protective bulkhead common to single-family residences. A normal protective bulkhead includes those structural and nonstructural developments installed at or near, and parallel to, the OHWM for the sole purpose of protecting an existing single-family residence and appurtenant structures from loss or damage by erosion. A normal protective bulkhead is not exempt if constructed for the purpose of creating dry land. When a vertical or nearly vertical wall is being constructed or reconstructed, not more than one cubic yard of fill per one foot of wall may be used as backfill. When an existing bulkhead is being repaired by construction of a vertical wall fronting the existing wall, it shall be constructed no farther waterward of the existing bulkhead than is necessary for construction of new footings. When a bulkhead has deteriorated such that an OHWM has been established by the presence and action of water landward of the bulkhead, then the replacement bulkhead must be located at or near the actual OHWM. Bioengineered erosion control projects may be considered a normal protective bulkhead when any structural elements are consistent with the above requirements and when the project has been approved by WDFW.

(d) Emergency construction necessary to protect property from damage by the elements. An emergency is an unanticipated and imminent threat to public health, safety, or the environment that requires immediate action within a time too short to allow full compliance with this SMP. Emergency construction does not include development of new permanent protective structures where none previously existed. Where new protective structures are deemed by the Shoreline Administrator to be the appropriate means to address the emergency situation, and upon abatement of the emergency situation, the new structure shall be removed, or any permit that would have been required, absent an emergency, pursuant to Chapter 90.58 RCW, these regulations, or this SMP, shall be obtained. All emergency construction shall be consistent with the policies and requirements of this section, Chapter 90.58 RCW, and this SMP. As a general matter, flooding or other seasonal events that can be anticipated and may occur but that are not imminent are not an emergency.

(i) The following criteria shall exist to qualify any action under an emergency provision:

(A) There must be an immediate threat to life, or public or private property, or an immediate threat of serious environmental degradation arising from a natural condition, or nonnatural accident or incident;

(B) The emergency response shall be confined to the action necessary to protect life or property from damage;

(D) The emergency response applies only to the period of time in which the actual emergency exists.

(ii) Once the emergency is abated or dissipated as deemed by jurisdictional authorities, compliance with the requirements of this section is required.

(iii) Emergency actions shall use reasonable methods that minimize the impact to critical areas and their buffers. Persons who take emergency action shall notify the Shoreline Administrator within one working day following commencement of the emergency activity. Following such notification, the Shoreline Administrator shall determine if the action taken was within the scope and definition of emergency actions as defined above. If the Shoreline Administrator determines the action taken or any part of the action taken was beyond the scope and definition of allowed emergency actions, then the enforcement provisions of PMC 29.35.140 shall apply.

(e) Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on shorelands and the construction and maintenance of irrigation structures, including but not limited to head gates, pumping facilities, and irrigation channels. A feedlot of any size, all processing plants, other activities of a commercial nature, and alteration of the contour of the shorelands by leveling or filling, other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities.

(f) Construction or modification of navigational aids, such as channel markers and anchor buoys.

(g) Construction on shorelands by an owner, lessee, or contract purchaser of a single-family residence or appurtenance for their own use or for the use of their family, which residence does not exceed a height of 35 feet above average grade level and which meets all requirements of the City, other than requirements imposed pursuant to Chapter 90.58 RCW. Construction authorized under this exemption shall be located landward of the OHWM.

(h) Construction of a dock, including a community dock designed for pleasure craft only and for the private noncommercial use of the owner, lessee, or contract purchaser of a single-family or multiple-family residence. This exception applies when the fair market value of the dock does not exceed $10,000, but if subsequent construction having a fair market value exceeding $2,500 occurs within five years of completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this section.

(i) Operation, maintenance, repair, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored groundwater from the irrigation of lands.

(j) The marking of property lines or corners on state-owned lands, when such marking does not significantly interfere with normal public use of the surface of the water.

(k) Operation and maintenance of existing and future systems of dikes, drains, or other facilities existing on September 8, 1975, where water is being drained from irrigation runoff or shallow groundwater levels artificially recharged through irrigation, and that are created, developed or utilized primarily as a part of an agricultural drainage or diking system.

(l) Any project with a certification from the Governor pursuant to Chapter 80.50 RCW (certification from the State Energy Facility Site Evaluation Council).

(m) Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this section, if:

(i) The activity does not interfere with the normal public use of surface waters;

(ii) The activity will have no significant adverse impact on the environment, including, but not limited to, fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values;

(iii) The activity does not involve the installation of any structure and, upon completion of the activity, the vegetation and land configuration of the site are restored to conditions existing before the activity; and

(iv) A private entity seeking development authorization under this section first posts a performance bond or provides other evidence of financial responsibility to the local jurisdiction to ensure that the site is restored to pre-existing conditions.

(n) The process of removing or controlling aquatic noxious weeds, as defined in RCW 17.26.020, through the use of an herbicide or other treatment methods applicable to weed control published by the Departments of Agriculture or Ecology jointly with other state agencies under Chapter 43.21C RCW.

(o) Watershed restoration projects as defined in RCW 89.08.460.

(p) A public or private project that is designed to improve fish or wildlife habitat or fish passage when all of the following apply:

(i) The project has been approved by WDFW;

(ii) The project has received HPA (hydraulic project approval) by WDFW pursuant to Chapter 77.55 RCW;

(iii) The City has determined that the project is substantially consistent with the local SMP. The City shall make such determination in a timely manner and provide it by letter to the applicant; and

(iv) Fish habitat enhancement projects that conform to the provisions of RCW 77.55.181 are determined to be consistent with local SMPs.

(q) Any person conducting a remedial action at a facility pursuant to a consent decree, order, or agreed order issued pursuant to Chapter 70.105D RCW or to Ecology when it conducts a remedial action under Chapter 70.105D RCW.

(r) Other than conversions to nonforest land use, forest practices regulated under Chapter 76.09 RCW are not subject to additional regulations under the SMA or this SMP (RCW 90.58.030(2)(d)(ii)). [Ord. 4314 § 2, 2016; Code 1970 § 29.01.770.]