CRITICAL AREAS REGULATIONS AND SHORELINE MASTER PROGRAM UPDATES - BURDEN OR OPPORTUNITY?

By Amy Summe, Environmental Planner, The Watershed Company

Most jurisdictions updating their Shoreline Master Programs (SMPs) are struggling with how to integrate critical areas regulations (CAR). Should they incorporate CAR by reference? Should they include appropriate sections of the CAR as an appendix to the SMP? Will the Department of Ecology (Ecology) approve the use of existing CAR or will the existing language need to be updated per recent science? What if revisions to the CAR are necessary? Should they be done just for the SMP update or for a greater jurisdiction-wide effort under Growth Management Act (GMA) guidelines? Should shoreline jurisdiction be expanded to include wetland buffers that extend outside of minimum shoreline jurisdiction and would otherwise not be regulated under the SMP?

Each of these questions needs to be answered, but the answers will vary depending on the particular circumstances.

• How long has it been since the CAR was last updated? Generally, more recent updates will be more consistent with the latest science and practices and more likely approved.
• What is the extent of critical areas -- especially wetlands -- within the shoreline jurisdiction and what is the expected development pressure on them? More critical areas and higher development pressure translates into greater need to revisit CAR.
• Does the jurisdiction have budget and backing by Council to undertake a jurisdiction-wide CAR update? A potentially volatile jurisdiction-wide CAR process could derail a successful SMP update if a jurisdiction struggled with CAR previously. Is it worth it?
• Would administration of two disparate versions of a CAR be too taxing for staff and confusing to the public?

The path forward may be obvious, but here are some tips for navigating potential twists in the road.

A jurisdiction with a recently updated CAR that reflects the best available science and incorporates all or most of Ecology's comments can expect inclusion of the existing CAR in the updated SMP, either by appendix or by reference, to be uneventful. "Best available science" is a term used by the GMA. The Shoreline Management Act requires that critical areas in shoreline jurisdiction be provided "a level of protection...that is at least equal to that provided by the local government's existing" CAR prepared under GMA. In addition, the SMA requires that the SMP version of the CAR "promote human uses and values... provided they do not significantly adversely impact ecological functions" and meet a "no net loss" standard. A jurisdiction should anticipate Ecology comments on the SMP version of the CAR if explicit, recent Ecology approval of the CAR has not occurred. Lack of comments from Ecology during the jurisdiction-wide CAR update is not equivalent to an endorsement or approval.

Chances are good that your jurisdiction either has an older CAR, or your CAR update did not fully utilize Ecology's guidance documents with respect to wetland rating, wetland buffers, wetland mitigation ratios, and related standards. If that is the case, you are faced with a tougher decision. You could update your CAR only for use within the SMP, thereby having two versions of the substantive provisions of the CAR within your jurisdiction. Or you could undertake a jurisdiction-wide CAR update so that the substantive provisions of each CAR are the same. The latter approach has clear advantages for planners, consultants and the public as it minimizes confusion and prevents potential misapplication of the substantive provisions in- and outside of shoreline jurisdiction. However, it can be very difficult to maintain your SMP grant schedule and not over-burden your Commissions and Council by providing them with two large, science-based projects simultaneously. There are other options of course, but for purposes of this discussion, let's assume you have elected to update the SMP version of your CAR and save the larger, jurisdiction-wide CAR update for another year.

Instead of fretting that you will have two CARs to implement and understand, how about approaching the update of the SMP version of your CAR as an opportunity? Not only will you be developing regulations that satisfy the most immediate goal of complying with the SMA, but you can also include new or refined language that addresses some of the more recent shifts in critical areas management. In addition, you can correct any loopholes and inconsistencies that you may have discovered during years of implementation of your jurisdiction-wide CAR.

However, the SMP version of the CAR will differ from your jurisdiction-wide CAR in a few key areas. For example, the SMP version of the CAR cannot include many of the exceptions or exemptions that are often seen in a jurisdiction-wide CAR, such as reasonable use or public agency utility exceptions. Departures from the substantive provisions of the SMP CAR will be handled through a Shoreline Variance. The only exemptions allowed in the SMP version of the CAR are those specifically listed in the Shoreline Management Act. The administration of the SMP version of the CAR, including chain of approval and review criteria, are also established in the SMP.

The general consensus is that the perfect set of critical areas regulations has not been created yet. Each jurisdiction is different, with different critical area types and sensitivities, different staff capabilities, and different development pressures. Further, many CAR seem to be lagging behind the science and the latest creative solutions. There are several reasons for this, including the length of time it usually takes to develop and approve CAR; the fact that science can be difficult to translate into clear, succinct regulations; and the potential for appeals from both environmental and development interests. There is as much art as science to developing a CAR that provides a practical degree of flexibility, an acceptable amount of administrative discretion, and adequate environmental protection.

It is not practicable to "try on" a set of regulations in your jurisdiction to see how well they work. The closest you can come to having a pilot study in a sub-area of your jurisdiction may be to adopt an updated CAR that applies to the shoreline jurisdiction only. Lessons learned from implementation of the shoreline CAR during even a one-year period can be valuable in informing the direction of your jurisdiction-wide CAR update. The shoreline CAR may, for example, be the perfect venue for your jurisdiction's first trial of regulations dealing with mitigation banking, or using watershed process analysis to locate development and mitigation rather than relying strictly on the traditional mitigation sequencing approach. (See Ecology's Protecting Aquatic Ecosystems: A Guide for Puget Sound Planners to Understand Watershed Processes if you are interested in this.)

Hindsight's always 20-20, but perhaps "mistakes" made during shoreline CAR development can benefit the larger jurisdiction-wide CAR in a tighter timeframe than the probable 7- to 10-year lag time likely to occur between CAR updates. The usual caveats apply, of course. It is very important that you coordinate closely with Ecology during development of the SMP version of your CAR, as Ecology has joint approval authority. Otherwise, the level of creativity may only be limited by imagination, political will, ease of implementation, and, naturally, science.

MAKING SHORELINE RESTORATION EASIER

By Jill Moe, ESA Adolfson

There is no doubt that there is a need for shoreline restoration in the Puget Sound region. The need is well documented in basin plans dating back to the 1980s, WRIA salmon recovery plans, best available science analyses, the Puget Sound Partnership Action Agenda, new shoreline restoration plans developed during Shoreline Master Program updates, and various other local and regional planning efforts. The local governments implementing these plans are faced with many challenges. Barriers to shoreline protection and restoration can include funding limitations, lack of public awareness about the need for and benefits of restoration, inconsistent political will, acquisition hurdles and delays, and permitting issues. This article addresses a barrier to restoration that relates to the definition of the shoreline itself under the Shoreline Management Act (SMA)¹ and associated permit and protection requirements.

For 15 years it has been recognized that some urban shoreline restoration projects are being reduced in size or foregone due to opposition from adjacent landowners. In the event that the ordinary high water mark is moved during restoration, then the SMA jurisdiction boundary also moves because it is determined by the location of the Ordinary High Water Mark. Landowners, public and private, have opposed such restoration projects to prevent more property becoming subject to shoreline regulations and permit processes. This issue has been discussed at length in the Puget Sound WRIA planning forums, in intergovernmental meetings and at the legislature.

Example Restoration Projects

The sites that are typically used to illustrate this issue are located in highly developed urban areas. The potential restoration site in Tukwila, pictured below, provides a good example. This property is at the edge of the salt/freshwater transition zone and was identified as an important site for restoration in the WRIA 9 Salmon Habitat Plan. The adjacent property (parcel boundaries shown in orange) is developed currently as a truck terminal and it is expected to be in demand for redevelopment. The landowner is concerned about the shoreline jurisdiction boundary extending further onto his property. WRIA 9 and the adjacent owner competed to purchase the site and considered pursuing a lot line adjustment to alleviate some of the adjacent landowner concerns. The fate of the site is as yet undetermined.

Potential Changes to Shoreline Jurisdiction on Potential Restoration Site in Tukwila (Prepared by King County DNRP)

In his 2003 paper discussing shoreline restoration, Eric Laschever described two cases in which there was a disincentive for restoration associated with movement of the shoreline boundary. He discussed a Seattle City Light property on which King County proposed to daylight Hamm Creek and reconnect it to the Duwamish River. The size of the restoration project was ultimately reduced so as not to affect other uses of the City property (see links below for more information on this high profile project). Second, Laschever described a Port of Seattle restoration project on the Duwamish River that was not pursued when an adjacent property owner objected to the change in the shoreline jurisdiction boundary.

Perspectives

Regional - All of the project examples discussed above are located in WRIA 9 (Green/Duwamish Watershed). Gordon Thomson, WRIA 9 Habitat Plan Manager, explains that the main concern on the part of adjacent owners is having to spend the time and money going through shoreline permit processes. Waiving shoreline requirements for such landowners or adjusting the definition of the shoreline jurisdiction could provide relief. Critical areas protections and SEPA would still ensure shoreline protection and require environmental review. "We want to give relief to upland property owners affected by projects in adopted salmon recovery plans, and remove this disincentive to restoration projects."

State - Although Tom Clingman, WA Department of Ecology (Ecology), recognizes that restoration may be discouraged by shoreline jurisdiction boundary movement, the agency has hesitated to pursue legislative action in past years. Ecology is not completely convinced that adjacent landowner concerns have to do with a real property threat (versus a perceived threat) and has not seen evidence that such concerns are statewide. Ecology is committed to working with concerned parties towards a solution.

Environmental - The environmental organization People for Puget Sound is in a unique position on this issue in that they do large scale restoration projects and closely review local shoreline regulations. Bruce Wishart, the organization's Policy Director, recognized that some good restoration projects have not moved forward because of this issue. He said, "People for Puget Sound wants to ensure that the SMA remains a viable regulation tool and is committed to working with others to find middle ground. We don't want to see expensive restoration projects be left without the upland protection needed to ensure that the projects are successful in the long term". Further, the group is concerned that mal intentioned landowners may take advantage of any changes to shoreline management requirements. The group believes that this is more of a problem for high intensity, urban areas with smaller lots, and any solution should be limited to these areas where it makes most sense. Wishart believes that case by case decisions or subarea planning are the most appropriate solutions. People for Puget Sound wants to preserve Ecology's authority to review the costs and benefits of these projects, ensure opportunities for public involvement, and achieve a net gain in environmental protection.

Local - Carol Lumb with the City of Tukwila says the City is considering both local and State solutions. In development of its Shoreline Master Program Update, the City is proposing to allow a greater range of uses within areas that are brought into shoreline jurisdiction solely as a result of neighboring restoration projects, including reducing the required buffer between the restoration site and the adjacent property and possibly exempting the project from obtaining a shoreline substantial development permit. Ecology and public review would be preserved as part of the Shoreline Master Program update. As a compromise, this approach seeks to temper landowners concerned about the regulatory burden and ensure ongoing shoreline protection. The City would also like to see shoreline permit requirement changes at the State level.

Previously Proposed Solutions

Three resolutions were discussed during the 2008 legislative session. HB 2734, supported by WRIA 9, attempted to "freeze" the shoreline jurisdiction boundary at its original location (if the ordinary high water mark has moved due to restoration). This solution was considered unworkable given that restoration is occurring at various scales statewide. For example, on a very large restoration site, such as a levee removal project, the original shoreline jurisdiction could have ended up completely underwater. An alternative resolution would have facilitated development on affected properties by requiring a "restoration project variance" rather than a shoreline substantial development permit. This alternative was also ultimately abandoned as it did not alleviate landowners" concerns about being subject to SMA permitting processes in general. The proposal was also generally contrary to the usual use of a variance (as a term of art) in land use management. A third idea pursued last session was resolving the issue via administrative permit requirements. This solution was opposed as there would be no opportunity for public review. In any case, when HB 2734 was discussed by the Local Government Committee there was unanimous support for making shoreline restoration easier. Ecology agreed to come back with a new proposal next session.

The Puget Sound Salmon Recovery Plan, finalized in 2007, includes policies specifically addressing this barrier to restoration projects. A WRIA 9 policy suggests "a shoreline exemption for properties affected by salmon habitat restoration projects that would relocate the location of the ordinary high water mark" (Policy IN2). Local governments, such as Tukwila, are considering allowing further uses and reduced shoreline protection requirements on affected properties. This may be the most feasible solution, although there are no Ecology-approved Shoreline Management Programs (SMPs) that include such provisions yet.

Laschever (2003) suggested multiple local options and incentives to facilitate shoreline restoration. Among other options (already discussed in this article), he suggests using shoreline development standards to provide opportunities for increased densities (or other means of increasing any affected land value), and assigning development rights to affected properties that could then be transferred to provide some economic benefit to adjacent landowners.

Current Action

Ecology is currently working with interested parties, including the private sector, local governments, environmental groups and Washington APA, to develop a proposal for the 2009 legislative session. Ecology's intent is to develop a solution for which there is broad support, focusing on flexibility in shoreline permit requirements on affected properties rather than any change in the definition of the shoreline jurisdiction. Ecology is also encouraging cities and counties to pursue solutions within their SMPs, such as the approach being taken by the City of Tukwila.

Want to get involved?

Please get in touch with Tom Clingman at 360-407-7448 or tcli461@ecy.wa.gov if you would like to participate in current discussions.

Web links:

• Shoreline Management Act Jurisdiction and Incentives for Shoreline Restoration Projects, Eric Laschever, Preston Gates & Ellis, LLP for City of Seattle (2003)
• Encouraging the Removal of Artificial Vertical Shoreline Bank Structures - House Bill 2734 (2008)
• Puget Sound Salmon Recovery Plan (2007)
• Hamm Creek Restoration
  • http://www.metrokc.gov/.../051899.htm
  • http://depts.washington.edu/.../hamm_creek.html
  • http://www.pugetsound.org/.../hamm-creek

1. The SMA shoreline jurisdiction generally includes large rivers and lakes, marine waters, associated wetlands and the shoreland area 200 feet landward of the ordinary high water mark. The shoreline jurisdiction may also include the floodplain (RCW 90.58.030; see http://www.ecy.wa.gov/programs/sea/sma/laws_rules/index.html).

CITY OF MONROE EXPERIENCE WITH SHORELINE MASTER PROGRAM

By Hiller West, AICP

In 2001 the city of Monroe obtained Coastal Zone Management funding for preparation of a shoreline inventory and "assessment and gap analysis" (also called a "properly functioning conditions", or PFC analysis). The work to be funded would be in preparation for a comprehensive update of the city's Shoreline Master Program. The city hired the Watershed Company, Kirkland-based specialists in shoreline management and critical areas, and John Owen with MAKERS, Inc. to provide assistance with the inventory, analysis, and future preparation of the SMP document.

The inventory focused on the Skykomish River, Woods Creek, and other wetlands and water systems that eventually drain into the Skykomish River within the city of Monroe and its urban growth area. The city completed the inventory and gap analysis in 2002, and obtained further funding in 2003 to prepare the draft SMP document. At about the same time period, the city completed a Critical Areas Ordinance and adopted it in 2003. As part of the CAO adoption process, the Tulalip Tribe had appealed the draft ordinance. Following extensive discussions with the Tribe, an agreement was reached that the appealed would be dropped in exchange for a commitment that the Tribe would be allowed to participate more extensively in the drafting process for both the critical areas ordinance and the draft shoreline master program.

The draft SMP was completed in early 2004 and was sent to the Department of Ecology. In August, 2004 DOE returned an extensive set of review comments on the document. However, on January 1, 2004 the new "Shoreline rule" (WAC 173-26) went into effect with new requirements for the preparation and adoption of shoreline master programs. Ecology notified the city that the new requirements were effective on the city's draft shoreline master program. As a result, the city requested additional grant funding to update the draft document, which was received in 2005. The new project period was for two years, July 2005 to June, 2007. In response to the August, 2004 DOE comments and the requirements of the new Shoreline rule, a new Restoration Element and Cumulative Impacts Matrix were prepared, and the updated draft SMP document was forwarded to the Department of Ecology in September, 2006. However, comments received from the Tulalip Tribe, Washington Department of Fish and Wildlife and the Washington Office of the Attorney General remained to be addressed in the draft document.

Following an extensive series of public workshops, additional modifications were made to the draft document and a public hearing was held by the city's Planning Commission in January and February 2007, for which extensive notice was provided. Also at this time, the DOE notified the city that a large stormwater detention facility adjacent to a city park would need to be classified as a regulated shoreline due to its size (over 20 acres) and therefore a new shoreline environment designation, policies and regulations for this facility would need to be developed. This required further modifications to the SMP document and a second public hearing.

Procedural and administrative regulations for administration of the SMP were also prepared and forwarded to DOE. The Planning Commission provided a recommendation of approval for both the SMP document and administrative regulations to the City Council in August 2007. In October 2007 the City Council adopted the Shoreline Master Program. An "adoption package" containing all the public record for the preparation and adoption of the SMP was sent to the Department of Ecology in January 2008.

Following receipt of the adoption package, the Department of Ecology scheduled a public hearing on the document at the city of Monroe in March 2008. Only one interested party attended the public hearing, indicating support for adoption of the document. Following the public hearing, the Department of Ecology's Project Manager initiated a detailed review of the draft SMP document and has periodically provided comments and questions to city staff regarding the document. It is anticipated that the DOE will issue a formal Notice of Adoption for the city's SMP document in the near future.

SUMMER '08 BROWN BAG SCHEDULE

APA Brown Bag Summer 2008 Series Schedule

By Stan May

Announcing the Puget Sound Section APA Summer '08 Brown Bag Series of continuing education!

Come to the FREE session you need to do your job better! APA-subsidized lunches, only $3! RSVPs are not required to attend or to buy a lunch. RSVPs are used to estimate the number of lunches to order. Please RSVP before 9:00 am Monday morning each week to Stan May at stan.may@bhcconsultants.com or (206) 505-3400.

Topic	Time	Place	Speakers!
Consulting as a Career, Profession and Lifestyle This brown bag workshop will be of interest to those who are contemplating entry into the consulting business either as a sole proprietor or for a firm. It may also be of interest to those who have recently entered the consulting 'game'. It is a collection of ideas and reflections for understanding consulting by two old battle scarred troopers, one who works primarily a sole proprietor; the other who has worked in mid-to-large sized firms for much of his career.	Noon to 1:15, Wed., Aug 6	Mercer Island City Council Chambers, 9611 SE 36th St.	Ben Frerichs Economic Consulting Services Roger Wagoner BHC Consultants
BMPs for processing development permits The Governor’s Office of Regulatory Assistance conducted a study this Spring to collect and report best practices related to development permit processing. Local government agencies and developers will learn the results of this study, which focused on how to improve efficiencies and reduce permit processing times.	Noon to 1:15, Wed., Aug 13	Mercer Island City Council Chambers, 9611 SE 36th St.	Anne Knapp, Governor's Office of Regulatory Assistance
APA Urban Design and Preservation Division "Do you know more than 800 urban designers and preservationists?  You do now: come see how we are shaping the national scene through APA's Urban Design and Preservation Division.  Find out how the Division is working to shape curriculum, support certification maintenance, hold urban design forums, and give out grants. All with local leadership!"	Noon to 1:15, Wed., Aug 20	PSRC, 1011 Western Ave, Suite 500, Seattle	Darby Watson Chair of the APA Urban Design and Preservation Division Bruce Rips City of Seattle