Chapter 23.100
SHORELINE USE POLICIES AND REGULATIONS

Sections:

23.100.010    Shoreline use and development.

23.100.020    Agriculture.

23.100.030    Aquaculture.

23.100.040    Boating facilities – Marinas and launch ramps.

23.100.050    Commercial use.

23.100.060    Flood control works and instream structures.

23.100.070    Industrial and port development.

23.100.080    Mining.

23.100.090    Moorage – Docks, piers and mooring buoys.

23.100.100    Recreation.

23.100.110    Residential.

23.100.120    Restoration and enhancement.

23.100.130    Shoreline stabilization.

23.100.140    Signs.

23.100.150    Transportation.

23.100.160    Utilities.

23.100.170    Cherry Point management area.

23.100.010 Shoreline use and development.

Shoreline use and development shall be classified by the administrator and regulated under one or more of the following applicable sections of Chapter 23.100 WCC. Unless otherwise stated, all use and development shall also comply with all of the general policies and regulations of Chapter 23.90 WCC and, if applicable, the policies of Chapter 23.40 WCC.

 

WCC Table 23.100.010
Shoreline Use by Area Designation(a) 

Shoreline Uses

Shoreline Area Designation

 

Urban

Urban Resort

Urban Conservancy

Shoreline Residential

Rural

Resource

Conservancy

Natural

Aquatic(b)

Cherry Point

Agriculture

 

P(-)

X

P(-)

P(-)

P

P

P

P(+)

X

 

Aquaculture

 

P

P(+)

P

P(+)

P(+)

P

P

P(+)

P

 

Commercial salmon net pen facilities

X(*)

X(*)

X(*)

X(*)

X(*)

X(*)

X(*)

X(*)

X(*)

 

Boating Facilities

Launch ramps

P

P

P

P

P

P

P

X(*)

P

 

Marinas

P

P

C

P

P

P

C

X

P

 

Covered over-water structures

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

P(+)

P(+)

Commercial

Water-oriented commercial

P

P(-)

C(-)

P

P

P(-)

C(-)

X

X(*)

 

Non-water-oriented commercial

C

C(-)

C(-)

C

C

C(-)

C(-)

X

X

 

Dredging

 

C

C

C

C

C

C

C

X(*)

C(*)

X(*)

Essential Public Facilities

 

C

C

C

C

C

C

C

X

C

 

Flood Control and Instream Structures

 

P

P

P

P

P

P

P

X

P

 

Channelization or dams for flood control

P

P

X

P

C

C

X

X

P

 

Forest Practices

 

X

X

X

X

P

P

P

C

X

 

Industrial and Port

Water-oriented industrial and port development

P

X(*)

X

X

P(-)

P(-) / C

X

X

P / C(-)

P(-)(+)

Non-water-oriented industrial and port development

C

X

X

X

C

C(-)

X

X

X

X

Dams, diversion and tailrace structures for hydroelectric power generation

C

X

C

C

C

C

C

X

P

 

Institutional

 

C

C

C

C

C

C

C

X

X

X

Landfill and Excavation

 

P

P

P

P

P

P

P(-) / C

X(*)

C(-) / X

X(*)

Mining

 

X

X

X

X

C

C

C

X

C(-) / X

 

Surface oil or gas drilling

X

X

X

X

X

X

X

X

X

X

Moorage: Docks, Piers and Mooring Buoys

Private and shared moorage

P

C

P(-) / C(-)

P

P

P

P(-) / C(-)

X(*)

P

 

Public moorage

C

C

C

C

C

C

C

X(*)

P

 

Commercial moorage

C

X(*)

C

C

C

C

C

X(*)

P

 

Industrial moorage

C

X

X

X

C

C

X

X(*)

P

P(+)

Covered moorage accessory to permitted moorage

C

C

X

C

X

X

X

X

P

C

Float plane moorage accessory to permitted moorage

C

C

C

C

C

C

C

X

P

 

Recreational

Water-oriented recreation

P

P

P(+)(-)

P

P

P(+)

P(+)(-)

P(+)(-)

P / C(-)

P(+)(-)

Residential

 

P

P

P(-) / C

P

P

P(+)(-)

P(-) / C

C(+)(-) / X

X

 

Restoration and Enhancement

 

P

P

P

P

P

P

P

P

P

P

Shoreline Stabilization

Groins

C

C

X

C

C

C

X

X

C

X

Breakwaters and jetties

C

C

C(+)(-)

C

C

C

C(+)(-)

X

C

C(+)(-)

Bulkheads and revetments

C

C

C

C

C

C

C

X

X(*)

C

Bioengineering approaches

P

P

P

P

P

P

P

P(+)

P(+)

P

Signs

 

P

P

P

P

P

P

P

X(*)

P(+)(-)

P

Transportation

 

P

P

P(-)

P

P

P

P(-)

X(*)

P(-) / C(-)

P(-)

Transportation facilities not serving a specific approved use

C

C

X

C

C

C

X

X

C

X

Utilities

Local distribution facilities

P

P

P(-) / C

P

P

P

P(-) / C

X(*)

P(-)(+) /
C(-) / X

P(-)(+)

Regional transmission facilities

C

C

C

C

C

C

C

X

C(-) / X

C

Desalinization facilities

C

C

C

C

C

C

C

X

P(-)

P(-)

P = Permitted, may be subject to policies and regulations of this program and subject to shoreline substantial development permit requirements.

C = Shoreline conditional use, subject to policies and regulations of this program and may be subject to shoreline substantial development permit requirements.

X = Prohibited.

N/A = Not applicable.

(-) Subject to limitations.

(+) Subject to conditions.

(*) Subject to exceptions.

(a) In the event that there is a conflict between the use(s) identified in Table 23.100.010 and the policies or regulations in Chapters 23.30, 23.90, or 23.100 WCC, the policies and regulations shall apply.

(b) Aquatic: Water-dependent use only, subject to the use and development regulations of the abutting upland shoreline area designation.

(Ord. 2014-051 § 3; Ord. 2009-13 § 1 (Exh. 1)).

23.100.020 Agriculture.

A. Policies.

1. This program recognizes the importance of agriculture in Whatcom County and supports its continued economic viability. This program allows for ongoing agricultural activities and should protect agricultural lands from conflicting uses such as intensive or unrelated residential, industrial or commercial uses, while also maintaining shoreline ecological functions and processes.

2. Agricultural uses and development in support of agricultural uses should be conducted in such a manner as to assure no net loss of shoreline ecological functions and processes and avoid substantial adverse impacts on other shoreline resources and values.

3. Conversion of agricultural uses to other uses should comply with all policies and regulations for nonagricultural uses.

B. Regulations.

1. Agricultural activities within shorelines are governed by the critical area regulations in Chapter 16.16 WCC including the conservation program on agricultural lands (CPAL) provided for in WCC 16.16.290.

2. Accessory uses and buildings shall observe critical area buffer requirements as defined in Chapter 16.16 WCC; except that utility development associated with an approved agriculture activity or development may encroach on critical area buffers where it can be demonstrated that the proposed utility development is essential to the agriculture activity or development and that such development complies with the general provisions of Chapter 16.16 WCC; such utilities shall be placed underground where feasible.

3. Intentional discharge of any manure storage facility into ground or surface water is prohibited.

4. New feedlots are prohibited in critical area buffers as defined in Chapter 16.16 WCC.

5. Conversion of agricultural uses to other uses shall comply with the provisions of Chapter 16.16 WCC and this program for the proposed use.

C. Shoreline Area Regulations.

1. Urban. Agricultural activities are permitted subject to policies and regulations of this program, except that new liquid manure storage facilities and liquid manure spreading are not permitted.

2. Urban Resort. New agricultural activities are prohibited.

3. Urban Conservancy. Agricultural activities are permitted subject to policies and regulations of this program, except that new animal feeding operations/concentrated animal feeding operations (AFO/CAFOs) are not permitted.

4. Shoreline Residential. Agricultural activities are permitted subject to policies and regulations of this program, except that new liquid manure storage facilities and liquid manure spreading are not permitted.

5. Rural. Agricultural activities are permitted subject to policies and regulations of this program.

6. Resource. Agricultural activities are permitted subject to policies and regulations of this program.

7. Conservancy. Agricultural activities are permitted subject to policies and regulations of this program.

8. Natural. Low intensity agricultural activities are permitted subject to policies and regulations of this program; provided, that the use does not expand or alter agricultural practices in a manner inconsistent with the purpose of this designation. All other agricultural activities are prohibited.

9. Aquatic. New agricultural activities are prohibited. Farming of fin fish, shellfish and management of other aquatic products are subject to the policies and regulations for aquaculture under WCC 23.100.030. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.030 Aquaculture.

Aquaculture in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC.

Nothing in these policies or regulations may be construed as to impinge on tribal treaty rights exercised within usual and accustomed areas. See also the policy in subsection (A)(8) of this section and the regulation in subsection (B)(1)(u) of this section.

A. Policies.

1. Aquaculture is a water-dependent use and, when consistent with control of pollution and avoidance of adverse impacts to the environment and preservation of habitat for resident native species, is a preferred use of the shoreline (WAC 173-26-241(3)(b)).

2. Potential locations for aquaculture activities are relatively restricted because of specific requirements related to water quality, temperature, oxygen content, currents, adjacent land use, wind protection, commercial navigation, and salinity. The technology associated with some forms of aquaculture is still experimental and in formative states. Therefore, some latitude should be given when implementing the regulations of this section; provided, that potential impacts on existing uses and shoreline ecological functions and processes should be given due consideration.

3. Preference should be given to those forms of aquaculture that involve lesser environmental and visual impacts and lesser impacts to native plant and animal species. In general, projects that require no structures, submerged structures or intertidal structures are preferred over those that involve substantial floating structures. Projects that involve little or no substrate modification are preferred over those that involve substantial modification. Projects that involve little or no supplemental food sources, pesticides, herbicides or antibiotic application are preferred over those that involve such practices.

4. Community restoration projects associated with aquaculture should be reviewed and permitted in a timely manner.

5. Aquaculture activities should be designed, located and operated in a manner that supports long-term beneficial use of the shoreline and protects and maintains shoreline ecological functions and processes. Aquaculture should not be permitted where it would result in a net loss of shoreline ecological functions; adversely affect the quality or extent of habitat for native species including eelgrass, kelp, and other macroalgae; adversely impact other habitat conservation areas; or interfere with navigation or other water-dependent uses.

6. Aquaculture that involves significant risk of cumulative adverse effects on water quality, sediment quality, benthic and pelagic organisms, and/or wild fish populations through potential contribution of antibiotic resistant bacteria, or escapement of nonnative species, or other adverse effects on ESA-listed species should not be permitted.

7. The county should actively seek substantive comment on any shoreline permit application for aquaculture from all appropriate federal, state and local agencies; the Lummi Nation, Nooksack Tribe, and other affected tribes; and the general public regarding potential adverse impacts. Comments of nearby residents or property owners directly affected by a proposal should be considered and evaluated, especially in regard to use compatibility and aesthetics.

8. The rights of treaty tribes to aquatic resources within their usual and accustomed areas should be addressed through the permit review process. Direct coordination between the applicant/proponent and the tribe should be encouraged.

9. Consideration should be given to both the potential beneficial impacts and potential adverse impacts that aquaculture development might have on the physical environment; on other existing and approved land and water uses, including navigation; and on the aesthetic qualities of a project area.

10. Legally established aquaculture enterprises, including authorized experimental projects, should be protected from incompatible uses that may seek to locate nearby. Use or developments that have a high probability of damaging or destroying an existing aquaculture operation may be denied.

11. Experimental aquaculture projects in water bodies should be limited in scale and should be approved for a limited period of time. Experimental aquaculture means an aquaculture activity that uses methods or technologies that are unprecedented or unproven in the state of Washington.

B. Regulations.

1. Site Design and Operation.

a. Aquaculture activities proposed within shorelines of statewide significance shall be subject to, first, the policies contained in Chapter 23.40 WCC, Shorelines of Statewide Significance, and, second, the policies and regulations contained in this section.

b. Aquaculture that involves little or no substrate modification shall be given preference over those that involve substantial modification. The applicant/proponent shall demonstrate that the degree of proposed substrate modification is the minimum necessary for feasible aquaculture operations at the site.

c. The installation of submerged structures, intertidal structures, and floating structures shall be allowed only when the applicant/proponent demonstrates that no alternative method of operation is feasible.

d. Aquaculture proposals that involve substantial substrate modification or sedimentation through dredging, trenching, digging, mechanical clam harvesting, or other similar mechanisms, shall not be permitted in areas where the proposal would adversely impact existing kelp beds or other macroalgae, eelgrass beds or habitat conservation areas.

e. Aquaculture activities, which would have a significant adverse impact on natural, dynamic shoreline processes or which would result in a net loss of shoreline ecological functions, shall be prohibited.

f. Aquaculture practices shall be designed to minimize use of artificial substances and shall use chemical compounds that are least persistent and have the least impact on plants and animals.

g. Commercial salmon net pen facilities shall not be located in Whatcom County waters, except for limited nonprofit penned cultivation of wild salmon stocks during a limited portion of their lifecycle to enhance restoration of native stocks when such activities involve minimal supplemental feeding and no use of chemicals or antibiotics.

h. Aquaculture uses and facilities shall be located at least 600 feet from any national wildlife refuge lands; except that:

i. Projects involving substantial substrate modification and/or fish net pens, if authorized, shall be located 1,500 feet or more from such areas.

ii. Lesser distances may be authorized by permit if it is demonstrated by the applicant/proponent that the wildlife resource will be protected and if the change is supported by the WDFW, the Lummi Nation and/or Nooksack Tribe.

iii. Greater distances may be required if supported by the reviewing resource agencies and/or where there is sound evidence demonstrating that a greater distance is required.

i. If uncertainty exists regarding potential impacts of a proposed aquaculture activity, and for all experimental aquaculture activities, baseline and periodic operational monitoring by a county-approved consultant (unless otherwise provided for) may be required, at the applicant’s/proponent’s expense, and shall continue until adequate information is available to determine the success of the project and/or the magnitude of any probable significant adverse environmental impacts. Permits for such activities shall include specific performance measures and provisions for adjustment or termination of the project at any time if monitoring indicates significant, adverse environmental impacts that cannot be adequately mitigated.

j. Aquaculture developments approved on an experimental basis shall not exceed five acres in area (except land-based projects and anchorage for floating systems) and three years in duration; provided, that the county may issue a new permit to continue an experimental project as many times as is deemed necessary and appropriate.

k. The county shall reserve the right to require aquaculture operations to carry liability insurance in an amount commensurate with the risk of injury or damage to any person or property as a result of the project. Insurance requirements shall not be required to duplicate requirements of other agencies.

l. Where aquaculture activities are authorized to use public facilities, such as boat launches or docks, the county shall reserve the right to require the applicant/proponent to pay a portion of the cost of maintenance and any required improvements commensurate with the use of such facilities.

m. New aquatic species that are not previously cultivated in Washington State shall not be introduced into Whatcom County saltwaters or freshwaters without prior written approval of the Director of the Washington State Department of Fish and Wildlife and the Director of the Washington Department of Health. In saltwaters, the county shall not issue permits for projects that include the introduction of such organisms until it has also received written comment from the Marine Resources Committee, the Lummi Nation and the Nooksack Tribe; provided, that such comment is received in a timely manner. This regulation does not apply to Pacific, Olympia, Kumomoto, Belon or Virginica oysters; Manila, Butter, or Littleneck clams; or Geoduck clams.

n. Unless otherwise provided in the shoreline permit issued by the county, repeated introduction of an approved organism in the same location shall require approval by the county only at the time the initial aquaculture use permit is issued. Introduction, for purposes of this section, shall mean the placing of any aquatic organism in any area within the waters of Whatcom County regardless of whether it is a native or resident organism within the county and regardless of whether it is being transferred from within or without the waters of Whatcom County.

o. For aquaculture projects using over-water structures, storage of necessary tools and apparatus waterward of the ordinary high water mark shall be limited to containers of not more than three feet in height, as measured from the surface of the raft or dock; provided, that in locations where the visual impact of the proposed aquaculture structures will be minimal, the county may authorize storage containers of greater height. In such cases, the burden of proof shall be on the applicant/proponent. Materials which are not necessary for the immediate and regular operation of the facility shall not be stored waterward of the ordinary high water mark.

p. No processing of any aquaculture product, except for the sorting or culling of the cultured organism and the washing or removal of surface materials or organisms after harvest, shall occur in or over the water unless specifically approved by permit. All other processing and processing facilities shall be located on land and shall be subject to the policies and regulations of WCC 23.100.070, Industrial and port development, in addition to the policies and regulations in this section.

q. Aquaculture wastes shall be disposed of in a manner that will ensure strict compliance with all applicable governmental waste disposal standards, including but not limited to the Federal Clean Water Act, Section 401, and the Washington State Water Pollution Control Act (Chapter 90.48 RCW). No garbage, wastes or debris shall be allowed to accumulate at the site of any aquaculture operation.

r. Predator control shall not involve the killing or harassment of birds or mammals. Approved controls include, but are not limited to, double netting for seals, overhead netting for birds, and three-foot-high fencing or netting for otters. The use of other nonlethal, nonabusive predator control measures shall be contingent upon receipt of written approval from the National Marine Fisheries Service and/or the U.S. Fish and Wildlife Service, as required.

s. Fish net pens and rafts shall meet the following criteria in addition to the other applicable regulations of this section:

i. Fish net pens shall meet, at a minimum, state-approved administrative guidelines for the management of net pen cultures. In the event there is a conflict in requirements, the more restrictive requirement shall prevail.

ii. Fish net pens shall not occupy more than two surface acres of water area, excluding booming and anchoring requirements. Anchors that minimize disturbance to substrate, such as helical anchors, shall be employed. Such operations shall not use chemicals or antibiotics.

iii. Aquaculture proposals that include net pens or rafts shall not be located closer than one nautical mile to any other aquaculture facility that includes net pens or rafts; provided, that a lesser distance may be authorized if the applicant/proponent can demonstrate that the proposal will be consistent with the environmental and aesthetic policies and objectives of this program. If a lesser distance is requested, the burden of proof shall be on the applicant/proponent to demonstrate that the cumulative impacts of existing and proposed operations would not be contrary to the policies and regulations of this program.

iv. Net cleaning activities shall be conducted on a frequent enough basis so as not to violate state water quality standards. When feasible, the cleaning of nets and other apparatus shall be accomplished by air drying, spray washing, or hand washing.

v. In the event of a significant fish kill at the site of a net pen facility, the fin fish aquaculture operator shall submit a timely report to the Whatcom County environmental health division and the Whatcom County planning and development services department stating the cause of death and shall detail remedial action(s) to be implemented to prevent reoccurrence.

t. All floating and submerged aquaculture structures and facilities in navigable waters shall be marked in accordance with U.S. Coast Guard requirements.

u. The rights of treaty tribes to aquatic resources within their usual and accustomed areas shall be addressed through direct coordination between the applicant/proponent and the affected tribe(s) through the permit review process.

v. Aquaculture structures and equipment shall be of sound construction and shall be so maintained. Abandoned or unsafe structures and/or equipment shall be removed or repaired promptly by the owner. Where any structure might constitute a potential hazard to the public in the future, the county shall require the posting of a bond commensurate with the cost of removal or repair. The county may abate an abandoned or unsafe structure, following notice to the owner, if the owner fails to respond in 30 days and may impose a lien on the related shoreline property or other assets in an amount equal to the cost of the abatement. Bonding requirements shall not duplicate requirements of other agencies.

2. Application Requirements.

a. Applications for aquaculture use or development shall include in their applications all information necessary to conduct a thorough evaluation of the proposed aquaculture activity, including but not limited to the following:

i. A site plan map including:

(A) The perimeter of the proposed aquaculture operations area.

(B) Existing bathymetry depths based on mean lower low water (MLLW datum).

(C) Adjacent upland use, vegetation, presence of structures, docks, bulkheads and other modifications. If there are shore stabilization structures, provide the beach elevation at the toe of the structure and the top of the structure (MLLW datum).

(D) Areas where specific substrate modification will take place or structures will be constructed or installed.

(E) Access provisions for barges or track equipment.

(F) Location of storage or processing structures or facilities.

ii. A baseline description of existing conditions, including best available information on:

(A) Water quality.

(B) Tidal variations.

(C) Prevailing storm wind conditions.

(D) Current flows.

(E) Flushing rates.

(F) Littoral drift.

(G) Areas of differing substrate composition.

(H) Areas of aquatic, intertidal, and upland vegetation complexes.

(I) Existing shoreline or water uses and structures.

(J) Aquatic and benthic organisms.

(K) A vegetation habitat survey must be conducted. The WDFW must be contacted prior to the survey to ensure it is conducted according to the most current WDFW eelgrass/macroalgae survey guidelines.

(L) Assessment of aquatic species, including forage fish, and spawning and other lifecycle use of, or adjacent to, the site.

Further baseline studies including surveys and sampling may be required depending upon the adequacy of available information, existing conditions, and the nature of the proposal.

iii. A detailed description of the project proposal including:

(A) Species to be reared.

(B) Substrate modification or vegetation removal.

(C) Planting, harvest and processing location, method and timing, including work proposal and construction techniques proposed (list all hand tools, machinery used (such as track hoes, trucks or barges), type of work, frequency, and duration.

iv. Anticipated use of any feed, pesticides, herbicides, antibiotics, vaccines, growth stimulants, antifouling agents, or other chemicals, and an assessment of predicted impacts. No such materials shall be used until approval is obtained from all appropriate state and federal agencies, including but not limited to the U.S. Food and Drug Administration, and the Washington State Departments of Ecology, Fish and Wildlife, and Agriculture, as required, and proof thereof is submitted to the county. Compounds with the least persistence shall be used. An annual report of antibiotic use shall be submitted to the Whatcom County environmental health division. The report shall indicate the type and amount of antibiotics used during the previous calendar year. Actual usage data for all chemicals and antibiotics shall be maintained for review by county inspectors at all times.

v. Number of employees/workers necessary for the project, including average and peak employment.

vi. Methods of waste disposal and predator control.

vii. Methods to address pollutant loading, including biological oxygen demand (BOD).

viii. Assessment of potential impacts on shoreline ecological functions and processes addressing the baseline conditions identified, including but not limited to indirect and cumulative effects.

ix. For floating culture facilities or other structures, the county may require a visual impact analysis. (See the Department of Ecology’s “Aquaculture Siting Study” 1986 for general approach.) Depending on the size and complexity of the proposal, such analysis may be prepared by the applicant/proponent, without professional assistance; provided, that it includes an adequate assessment of impacts.

x. Information demonstrating that the site has natural potential for the type(s) of aquaculture proposed, due to necessary substrate or other conditions, as well as water quality suitable for the type(s) of aquaculture proposed.

xi. Information demonstrating that the proposed aquaculture activities will not result in a net loss of shoreline ecological functions or processes or adversely affect habitat conservation areas as defined by Chapter 16.16 WCC.

xii. Information demonstrating that the proposed aquaculture activities will not substantially and materially conflict with areas devoted to established uses of the aquatic environment. Such uses include but are not limited to navigation, moorage, sport or commercial fishing, log rafting, underwater utilities, and scientific research. Existing public opportunities for gathering wild stock aquatic resources on public lands shall be addressed in any application for aquaculture on public tidelands or bedlands. Compensation for loss of public access to public aquatic resources may be required.

xiii. Other pertinent information deemed necessary by the administrator.

b. Applications for aquaculture activities must demonstrate that the proposed activity will be compatible with surrounding existing and planned uses.

i. Aquaculture activities shall comply with all applicable noise, air, and water quality standards. All projects shall be designed, operated and maintained to minimize odor and noise.

ii. Aquaculture activities shall be restricted to reasonable hours and/or days of operation when necessary to minimize substantial, adverse impacts from noise, light, and/or glare on nearby residents, other sensitive uses or critical habitat.

iii. Aquaculture facilities shall not introduce incompatible visual elements or substantially degrade the aesthetic qualities of the shoreline. Aquaculture structures and equipment, except navigation aids, shall be designed, operated and maintained to blend into their surroundings through the use of appropriate colors and materials.

C. Shoreline Area Regulations.

1. Urban. Aquaculture activities are permitted subject to policies and regulations of this program.

2. Urban Resort. Aquaculture activities are permitted subject to policies and regulations of this program. Proposals containing net pen facilities shall be located no closer than 1,500 feet from the OHWM of this environment, unless a specific lesser distance is determined to be appropriate based upon a visual impact analysis. Other types of floating culture facilities may be located within 1,500 feet of the OHWM but in such cases a visual analysis shall be mandatory.

3. Urban Conservancy. Aquaculture activities are permitted subject to policies and regulations of this program.

4. Shoreline Residential. Aquaculture activities are permitted subject to policies and regulations of this program. Proposals containing net pen facilities shall be located no closer than 1,500 feet from the OHWM of this environment, unless a specific lesser distance is determined to be appropriate based upon a visual impact analysis. Other types of floating culture facilities may be located within 1,500 feet of the OHWM but in such cases a visual analysis shall be mandatory.

5. Rural. Aquaculture activities are permitted subject to policies and regulations of this program. Proposals containing net pen facilities shall be located no closer than 1,500 feet from the OHWM of this environment, unless a specific lesser distance is determined to be appropriate based upon a visual impact analysis.

6. Resource. Aquaculture activities are permitted subject to policies and regulations of this program.

7. Conservancy. Aquaculture activities are permitted subject to policies and regulations of this program.

8. Natural. Aquaculture activities that do not require structures, facilities or mechanized harvest practices and that will not result in the alteration of natural systems or features are permitted subject to policies and regulations of this program.

9. Aquatic. Aquaculture activities are permitted, subject to the use and development regulations of the abutting upland shoreline area designation. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.040 Boating facilities – Marinas and launch ramps.

Boating facilities, including marinas and launch ramp development, in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC. Docks serving four or fewer single-family residences are subject to the policies and regulations of WCC 23.100.090, Moorage – Docks, piers, and mooring buoys.

A. Policies.

1. Boating facilities, including marinas and launch ramps, are water-dependent uses and should be given priority for shoreline location. Boating facilities should also contribute to public access and enjoyment of waters of the state. Shorelines particularly suitable for marinas and launch ramps are limited and should be identified and reserved to prevent irreversible commitment for other uses having less stringent site requirements.

2. Regional needs for marina and boat launch facilities should be carefully considered in reviewing new proposals as well as in allocating shorelines for such development. Such facilities should be coordinated with park and recreation plans and, where feasible, collocated with port or other compatible water-dependent uses. Review of such facilities should be coordinated with recreation providers, including cities, adjacent counties, port districts, the Whatcom County parks and recreation department, the Washington State Parks and Recreation Commission, and the Washington State Department of Natural Resources to avoid unnecessary duplication and to efficiently provide recreational resources while minimizing adverse impacts to shoreline ecological functions and processes.

3. Upland boat storage is preferred over new in-water moorage. Mooring buoys are preferred over docks and piers. Boating facilities that minimize the amount of shoreline modification are preferred.

4. Boating facilities should provide physical and visual public shoreline access and provide for multiple use, including water-related use, to the extent compatible with shoreline ecological functions and processes and adjacent shoreline use.

5. Accessory uses at marinas or launch ramps should be limited to water-oriented uses, or uses that provide physical or visual shoreline access for substantial numbers of the general public.

6. New or expanding boating facilities including marinas, launch ramps, and accessory uses should only be sited where suitable environmental conditions are present and should avoid critical saltwater habitat including kelp beds, eelgrass beds, spawning and holding areas for forage fish (such as herring, surf smelt and sandlance); subsistence, commercial and recreational shellfish beds; mudflats, intertidal habitats with vascular plants; and areas with which priority species have a primary association.

7. Boating facilities should be located and designed to avoid adverse effects upon coastal, riverine, and nearshore processes such as erosion, littoral or riparian transport, and accretion, and should, where feasible, enhance degraded, scarce, and/or valuable shore features including accretion shoreforms.

8. Launch ramps are preferred over marinas on accretion shores because associated impacts are often reversible and such structures will not normally interfere with littoral drift and accretion unless offshore defense structures or dredging are also required.

9. Nonregulatory methods to protect, enhance, and restore shoreline ecological functions and processes and other shoreline resources should be encouraged during the design, development and operation of boating facilities. Nonregulatory methods may include public facility and resource planning, education, voluntary protection and enhancement projects, or incentive programs.

10. Boating facilities should be located, designed and operated so that other appropriate water-dependent uses are not adversely affected.

11. Location and design of boating facilities should not unduly obstruct navigable waters and should avoid adverse effects to recreational opportunities such as fishing, shellfish gathering, pleasure boating, commercial aquaculture, swimming, beach walking, picnicking and shoreline viewing.

12. Boating facilities should be located, designed, constructed and maintained to avoid adverse proximity impacts such as noise, light and glare; aesthetic impacts to adjacent land uses; and impacts to public visual access to the shoreline.

B. Regulations.

1. Site Design and Operation.

a. Marinas or launch ramps shall not be permitted on the following marine shores unless it can be demonstrated that interference with littoral drift and/or degradation or loss of shoreline ecological functions and processes, especially those vital to maintenance of nearshore habitat, will not occur. Such areas include:

i. Feeder bluffs exceptional.

ii. High energy input driftways.

b. Marinas or launch ramps shall not be permitted within the following marine shoreline habitats because of their scarcity, biological productivity and sensitivity unless no alternative location is feasible, the project would result in a net enhancement of shoreline ecological functions, and the proposal is otherwise consistent with this program:

i. Marshes, estuaries and other wetlands;

ii. Tidal pools on rock shores;

iii. Kelp beds, eelgrass beds, spawning and holding areas for forage fish (such as herring, surf smelt and sandlance);

iv. Subsistence, commercial and recreational shellfish beds; and

v. Other critical saltwater habitats.

c. Marinas or launch ramps shall not be permitted on the following marine accretion shoreforms unless it can be demonstrated that no other alternative location is feasible, the project would result in a net enhancement of shoreline ecological functions, and the proposal is otherwise consistent with this program. Hoists are preferred over dredged marinas or launch ramps at such locations:

i. Open points;

ii. Spits and hooks;

iii. Tombolos;

iv. Open bay barrier beaches;

v. Accretional pocket beaches.

d. Foreshore marinas or launch ramps may be permitted on low erosion rate marine feeder bluffs or on low energy input erosional driftways if the proposal is otherwise consistent with this program. Foreshore marinas or launch ramps are prohibited on accretional lake shores because these natural features are uncommon on lakes and are highly valuable for recreation.

e. Backshore marinas and launch ramps may be permitted on closed accretional points, closed accretional bluff and bay barrier beaches, or low energy input driftways, except where wetlands are present or it can be demonstrated that a foreshore location would result in fewer impacts to shoreline ecological functions and processes, natural features and uses.

f. Marinas or launch ramps may be permitted on low bank lake shores where backshore wetlands are protected, or where wetlands are not present, if most of the beach and backshore are preserved in a natural condition for public or quasi-public recreation.

g. Marinas shall not be permitted in low gradient, broad meander stream channel reaches, except where located on outer, concave bends or straight, moderately eroding or stable banks, so that dredging and/or shore protection will not be necessary.

h. Marina basins or structures shall not be permitted on river point bars or other accretional beaches. A limited number of launch ramps may be permitted on accretion shoreforms; provided, that any necessary grading will not adversely affect shoreline ecological functions or fluvial processes, and any accessory facilities are located out of the floodway.

i. Marinas shall not be permitted in areas of active channel migration, where channel dredging will be required, if a flood hazard will be created, or if valuable shoreline ecological functions and processes will be degraded.

j. Launch ramps may be located immediately downstream of accretion shoreforms, or on other nonerosional banks, where no or a minimum number of current deflectors will be necessary.

k. Floating piers shall be required in rivers and streams unless it can be demonstrated that fixed piers will result in substantially less impact on geohydraulic processes and flood hazards can be minimized or mitigated.

l. Where foreshore marinas are permitted:

i. Open pile or floating breakwater designs shall be used unless it can be demonstrated that riprap or other solid construction would not result in any greater net impacts to shoreline ecological functions or processes or shore features.

ii. Solid structures shall not be permitted to extend without openings from the shore to zero tide level (mean lower low water, or MLLW), but shall stop short to allow sufficient shallow fringe water for fish passage.

m. Foreshore and backshore marinas shall be designed to allow the maximum possible circulation and flushing of all enclosed water areas.

n. New or expanding marinas with dredged entrances that adversely affect littoral drift to the detriment of other shores and their users shall be required to periodically replenish such shores with the requisite quantity and quality of aggregate as determined by professional coastal geologic engineering studies.

o. Design and other standards for physical improvement of docks and piers are found in WCC 23.100.090, Moorage – Docks, piers and mooring buoys.

2. Public Access.

a. New launch ramps shall be approved only if they provide public access to public waters, which are not adequately served by existing access facilities, or if use of existing facilities is documented to exceed the designed capacity. Prior to providing ramps at a new location, documentation shall be provided demonstrating that expansion of existing launch facilities would not be adequate to meet demand. Public access areas shall provide space and facilities for physical and/or visual access to water bodies, including feasible types of public shore recreation.

b. Marinas and boat launches shall provide public access for as many water-dependent recreational uses as possible, commensurate with the scale of the proposal. Features for such access could include, but are not limited to, docks and piers, pedestrian bridges to offshore structures, fishing platforms, artificial pocket beaches, and underwater diving and viewing platforms.

3. Site Considerations.

a. Marinas, launch ramps, and accessory uses shall be designed so that lawfully existing or planned public shoreline access is not unnecessarily blocked, obstructed nor made dangerous.

b. Public launch ramps and/or marina entrances shall not be located near beaches commonly used for swimming, valuable fishing and shellfish harvest areas, or sea lanes used for commercial navigation unless no alternative location exists, and mitigation is provided to minimize impacts to such areas and protect the public health, safety and welfare.

c. Marinas and accessory uses shall be located only where adequate utility services are available, or where they can be provided concurrent with the development.

d. Marinas, launch ramps, and accessory uses shall be located where water depths are adequate to avoid the need for dredging and minimize potential loss of shoreline ecological functions or processes.

e. Marinas, launch ramps, and accessory uses shall be located and designed with the minimum necessary shoreline stabilization to adequately protect facilities, users, and watercraft from floods, abnormally high tides, and/or destructive storms.

4. Boat Storage.

a. Marinas shall provide dry upland boat storage with a launch mechanism to protect shoreline ecological functions and processes, efficiently use shoreline space, and minimize consumption of public water surface area unless:

i. No suitable upland locations exist for such facilities; or

ii. It can be demonstrated that wet moorage would result in fewer impacts to ecological functions and processes; or

iii. It can be demonstrated that wet moorage would enhance public use of the shoreline.

b. Dry moorage and other storage areas shall be located away from the shoreline and be landscaped with native vegetation to provide a visual and noise buffer for adjoining dissimilar uses or scenic areas.

c. New covered moorage for boat storage is prohibited. Covered over-water structures may be permitted only where vessel construction or repair work is to be the primary activity and covered work areas are demonstrated to be the minimum necessary over water.

5. Waste Disposal.

a. Marinas shall provide pump out, holding, and/or treatment facilities for sewage contained on boats or vessels.

b. Discharge of solid waste or sewage into a water body is prohibited. Marinas and boat launch ramps shall provide adequate restroom and sewage disposal facilities in compliance with applicable health regulations.

c. Garbage or litter receptacles shall be provided and maintained by the operator at several locations convenient to users.

d. Disposal or discarding of fish or shellfish cleaning wastes, scrap fish, viscera, or unused bait into water or in other than designated garbage receptacles is prohibited.

e. Marina operators shall post all regulations pertaining to handling, disposal and reporting of waste, sewage, fuel, oil or toxic materials where all users may easily read them.

6. Oil Product Handling, Spills, and Wastes. Fail-safe facilities and procedures for receiving, storing, dispensing, and disposing of oil or hazardous products, as well as a spill response plan for oil and other products, shall be required of new marinas and expansion or substantial alteration of existing marinas. Compliance with federal or state law may fulfill this requirement. Handling of fuels, chemicals or other toxic materials must be in compliance with all applicable federal and state water quality laws as well as health, safety and engineering requirements. Rules for spill prevention and response, including reporting requirements, shall be posted on site.

7. Parking and Vehicle Access.

a. Parking facilities shall meet county zoning standards; provided, that at a minimum, one vehicle space shall be maintained for every four moorage spaces and for every 400 square feet of interior floor space devoted to accessory retail sales or service use. Bicycle parking shall be provided commensurate with the anticipated demand.

b. Public or quasi-public launch ramps shall provide trailer spaces, at least 10 feet by 40 feet, commensurate with projected demand.

c. Parking that does not require a shoreline location in order to carry out its functions shall:

i. Be sited away from the land/water interface unless no feasible alternative location exists outside of the shoreline;

ii. Be planted or landscaped, preferably with native vegetation, to provide a visual and noise buffer for adjoining dissimilar uses or scenic areas;

iii. Observe critical area buffers in Chapter 16.16 WCC; and

iv. Be designed to incorporate low impact development practices, such as pervious surfaces, and bioswales, to the extent feasible.

d. Connecting roads between marinas and public streets shall have all weather surfacing, and be satisfactory to the county engineer in terms of width, safety, alignment, sight distance, grade and intersection controls.

8. Launch Ramp Design.

a. Preferred ramp designs, in order of priority, are:

i. Open grid designs with minimum coverage of beach substrate.

ii. Seasonal ramps that can be removed and stored upland.

iii. Structures with segmented pads and flexible connections that leave space for natural beach substrate and can adapt to changes in beach profile.

b. Ramps shall be placed and maintained near flush with the foreshore slope.

9. Accessory Uses.

a. Accessory uses at marinas or launch ramps shall be limited to those water-oriented uses, or uses that provide physical or visual shoreline access for substantial numbers of the general public. Accessory development includes, but is not limited to, parking, open air storage, waste storage and treatment, stormwater management facilities, utility and upland transportation development.

b. Water-oriented accessory uses reasonably related to marina operation may be located over water or at the water’s edge by conditional use if an over-water or water’s edge location is essential to the operation of the use or if opportunities are provided for public access for a substantial number of persons.

10. Application Requirements.

a. Applications for new boating facilities, including marinas and launch ramps, shall be approved only if enhanced public access to public waters outweighs the potential adverse impacts of the use. Applications shall be accompanied by supporting application materials that document the market demand for such facilities, including:

i. The total amount of moorage proposed;

ii. The proposed supply, as compared to the existing supply within the service range of the proposed facility, including vacancies or waiting lists at existing facilities;

iii. The expected service population and boat ownership characteristics of the population;

iv. Existing approved facilities or pending applications within the service area of the proposed new facility.

b. New marinas with in-water moorage and expansion of in-water moorage facilities in existing marinas shall be approved only when:

i. Opportunities for upland storage sufficient to meet the demand for moorage are not available on site; and

ii. Expansion of upland storage at other existing marinas is not feasible.

Applications shall document that a preferred method of providing moorage facilities is not feasible. Review of proposals involving public aquatic lands may be required to include an analysis of other alternative sites not controlled by the applicant/proponent.

c. Applications for launch ramps shall contain:

i. A habitat survey.

ii. A slope bathymetry map.

iii. Evaluation of effects on littoral drift.

d. Applications for marinas, launch ramps, and accessory uses shall include an assessment of existing water-dependent uses in the vicinity including, but not limited to, navigation, fishing, shellfish harvest, pleasure boating, swimming, beach walking, picnicking and shoreline viewing and document potential impacts and mitigating measures. Impacts on these resources shall be considered in review of proposals and specific conditions to avoid or minimize impacts may be imposed.

e. Marina and launch ramp proposals may be required to prepare a visual assessment of views from surrounding residential properties, public viewpoints and the view of the shore from the water surface.

11. Tabular Regulations – Setbacks, Height and Open Space for Marinas and Launch Ramp Development. Minimum required setbacks from shorelines and side property lines, maximum height limits and open space requirements are contained in WCC 23.90.130, Shoreline bulk provisions – Buffers, setbacks, height, open space and impervious surface coverage.

C. Shoreline Area Regulations.

1. Urban. Marinas and launch ramps are permitted subject to policies and regulations of this program.

2. Urban Resort. Marinas and launch ramps are permitted subject to policies and regulations of this program.

3. Urban Conservancy. Launch ramps are permitted subject to policies and regulations of this program. Marinas may be permitted as a conditional use.

4. Shoreline Residential. Marinas and launch ramps are permitted subject to policies and regulations of this program.

5. Rural. Marinas and launch ramps are permitted subject to policies and regulations of this program.

6. Resource. Marinas and launch ramps are permitted subject to policies and regulations of this program.

7. Conservancy. Launch ramps are permitted subject to policies and regulations of this program. Marinas may be permitted as a conditional use.

8. Natural. Marinas or launch ramps are prohibited; except that primitive ramps to facilitate hand launching of small craft are permitted if materials and design are compatible with the site.

9. Aquatic.

a. Marinas and launch ramps are permitted subject to the use and development regulations of the abutting upland shoreline area designation.

b. Covered over-water structures may be permitted only where vessel construction or repair work is to be the primary activity and covered work areas are demonstrated to be the minimum necessary over water. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.050 Commercial use.

Commercial development in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC.

A. Policies.

1. In securing shoreline locations for commercial use, preference should be given first to water-dependent commercial uses, then to water-related and water-enjoyment commercial uses.

2. Restoration of impaired shoreline ecological functions and processes should be encouraged as part of commercial development.

3. Commercial development should ensure visual compatibility with adjacent noncommercial properties.

4. Commercial uses located in the shoreline should provide public access in accordance with constitutional or other legal limitations unless such improvements are demonstrated to be infeasible or present hazards to life and property.

B. Regulations.

1. Allowed Use. Commercial uses that result in no net loss of shoreline ecological functions and processes are allowed subject to the policies and regulations of WCC 23.90.030 and the specific criteria below:

a. Water-dependent commercial uses shall be given preference over water-related and water-enjoyment commercial uses. Prior to approval of water-dependent uses, the administrator shall review a proposal for design, layout and operation of the use and shall make specific findings that the use qualifies as a water-dependent use.

b. Water-related commercial uses may not be approved if they displace existing water-dependent uses. Prior to approval of a water-related commercial use, the administrator shall review a proposal for design, layout and operation of the use and shall make specific findings that the use qualifies as a water-related use.

c. Water-enjoyment commercial uses may be not be approved if they displace existing water-dependent or water-related uses or if they occupy space designated for water-dependent or water-related use identified in a substantial development permit or other approval. Prior to approval of water-enjoyment uses, the administrator shall review a proposal for design, layout and operation of the use and shall make specific findings that the use qualifies as a water-enjoyment use.

d. Non-water-oriented commercial uses may be permitted as a conditional use where located on a site physically separated from the shoreline by another property in separate ownership or a public right-of-way such that access for water-oriented use is precluded; provided, that such conditions were lawfully established prior to the effective date of this program. All other non-water-oriented commercial uses are prohibited in the shoreline unless the use provides significant public benefit with respect to the objectives of the Act and is:

i. Part of a mixed use project that includes a water-oriented use; or

ii. Proposed on a site where navigability is severely limited.

e. When permitted, non-water-oriented commercial uses shall provide access and/or restoration as follows:

i. Non-water-oriented commercial uses shall provide public access in the form of unrestricted open space. The administrator shall determine the amount of access in accordance with the provisions of WCC 23.90.080 on a case-by-case basis.

ii. If no water-oriented commercial uses are located on or adjacent to the water as part of a mixed use development, 80 percent of the shoreline and associated buffers shall be preserved or restored to provide shoreline ecological functions that approximate the functions provided by the site in natural conditions.

iii. The requirements in subsections (B)(1)(e)(i) and (ii) of this section may be modified when:

(A) The site is designated as a public access area by a shoreline public access plan, in which case public access consistent with that plan element shall be provided; or

(B) Specific findings are made demonstrating that the size of the parcel and the presence of adjacent uses preclude restoration of shoreline ecological functions. Where on-site restoration is infeasible, equivalent off-site restoration shall be provided consistent with the policies and regulations of this program.

iv. Where restoration is proposed, buffers shall be designed as appropriate to protect shoreline resources based on a specific restoration plan and may differ from the standard critical area buffer dimensions provided in Chapter 16.16 WCC; provided, that the building envelope for the proposed non-water-oriented use shall be based on current site conditions.

v. The requirements of this subsection (B)(1)(e) shall not apply to those non-water-oriented commercial uses located on a site physically separated from the shoreline where access to the land/water interface is precluded.

f. If water-oriented commercial uses are located on or adjacent to the water, the remaining undeveloped water frontage that is not devoted to water-dependent use shall be preserved in a substantially undeveloped condition until such time that an appropriate water-dependent use has been identified for the area. If the site has been previously altered by past development, the balance of the site may be reserved for future water-related use.

2. Recreation Facilities. Commercial recreation-oriented uses, including commercial resorts and rental campgrounds, shall provide adequate access to water areas for their patrons or shall provide adequate on-site outdoor recreation facilities so that such resort or campground will neither be dependent on nor place undue burdens upon public access and recreational facilities.

3. Access and Utilities. New and expanded commercial development shall install or establish access roads of sufficient capacity and with appropriate improvements to provide vehicular and pedestrian access to the site. Utilities shall be adequate to serve the demands of the proposed uses.

4. Over-Water Structures.

a. Only those portions of water-dependent commercial uses that require over-water facilities such as boat fuel stations shall be permitted to locate waterward of the OHWM, provided they are located on piling or other open-work structures.

b. Non-water-dependent commercial uses shall not be allowed over water except in limited instances where they are appurtenant to and necessary in support of water-dependent uses.

5. Building Height.

a. As mandated by the Act (RCW 90.58.320), no permit may be issued for any new or expanded building or structure of more than 35 feet above average grade level on shorelines that will obstruct the view of a substantial number of residences on areas adjoining such shorelines, except where this program does not prohibit such development and only when overriding considerations of the public interest will be served.

b. Lodging developments over 35 feet in height may be allowed in resort communities within the urban resort shoreline area designation, subject to the requirements of WCC 23.90.130(B)(5). However, due to the potential for adverse impact upon adjacent uses and the community from such development, special consideration must be given to the following factors during review of such proposals:

i. Urban services, including sanitary sewers, public water supply, fire protection, storm drainage, and police protection, must be provided at adequate levels to protect the public health, safety, and welfare.

ii. Circulation, parking areas, and outdoor storage or loading areas should be adequate in size and designed so that the public safety and local aesthetic values are not diminished. Such areas should be screened from open space areas by landscaping, fences or similar structures, or grade separation.

iii. Recreational needs of building clientele must be provided for through several on-site recreation facilities and access to shorelines. The variety and number of on-site recreation facilities should increase proportionately as density increases.

6. Tabular Regulations – Setbacks, Height and Open Space for Commercial Development. Minimum required setbacks from shorelines and side property lines, maximum height limits and open space requirements are contained in WCC 23.90.130, Shoreline bulk provisions – Buffers, setbacks, height, open space and impervious surface coverage.

C. Shoreline Area Regulations.

1. Urban. Water-oriented commercial use and development is permitted subject to policies and regulations of this program. Non-water-oriented commercial may be permitted as a conditional use subject to the criteria for such uses in subsection (B)(1)(d) of this section.

2. Urban Resort. Water-oriented resort-oriented commercial use and development is permitted subject to policies and regulations of this program. Non-water-oriented commercial may be permitted as a conditional use subject to the criteria for such uses in subsection (B)(1)(d) of this section. Commercial uses allowed in this designation are permitted either by themselves or as part of a structure or development also containing residential uses, subject to policies and regulations of this program.

3. Urban Conservancy. Low intensity water-oriented commercial use and development limited to resort, bed and breakfast, campgrounds and similar facilities may be permitted as a conditional use. Low intensity non-water-oriented commercial limited to resort, bed and breakfast, campgrounds and similar facilities may be permitted as a conditional use subject to the criteria for such uses in subsection (B)(1)(d) of this section.

4. Shoreline Residential. Water-oriented commercial use and development is permitted subject to policies and regulations of this program. Non-water-oriented commercial may be permitted as a conditional use subject to the criteria for such uses in subsection (B)(1)(d) of this section.

5. Rural. Water-oriented commercial use and development is permitted subject to policies and regulations of this program. Non-water-oriented commercial may be permitted as a conditional use subject to the criteria for such uses in subsection (B)(1)(d) of this section.

6. Resource. Water-oriented commercial use and development related to natural resource products predominantly produced on site is permitted subject to policies and regulations of this program. Non-water-oriented commercial related to natural resource products predominantly produced on site may be permitted as a conditional use subject to the criteria for such uses in subsection (B)(1)(d) of this section.

7. Conservancy. Low intensity water-oriented commercial use and development limited to resort, bed and breakfast, campgrounds and similar facilities may be permitted as a conditional use. Low intensity non-water-oriented commercial limited to resort, bed and breakfast, campgrounds and similar facilities may be permitted as a conditional use subject to the criteria for such uses in subsection (B)(1)(d) of this section.

8. Natural. Commercial use and development is prohibited.

9. Aquatic. Commercial use and development is prohibited, except that water-dependent uses and appurtenant structures may be permitted subject to the use and development regulations of the abutting upland shoreline area designation. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.060 Flood control works and instream structures.

Flood control works and instream structures in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC.

A. Policies.

1. Purpose and Need.

a. New or expanding development or uses in the shoreline, including subdivision of land, that would likely require structural flood control works within a stream, channel migration zone, or floodway should not be allowed.

b. Flood control works and instream structures should be planned and designed to be compatible with appropriate multiple uses of stream resources over the long term, especially in shorelines of statewide significance.

c. Flood control works should only be allowed in the shoreline if they are necessary to protect existing development and where nonstructural flood hazard reduction measures are infeasible.

d. Flood control works to protect existing development should be permitted only when the primary use being protected is consistent with this program, and the works can be developed in a manner that is compatible with multiple use of streams and associated resources for the long term, including shoreline ecological functions, fish and wildlife management, and recreation.

2. Design Considerations.

a. Flood control works should incorporate native vegetation to enhance ecological functions, create a more natural appearance, improve ecological processes, and provide more flexibility for long-term shoreline management. Such features include vegetated berms; vegetative stabilization including brush matting and buffer strips; and retention of existing trees, shrubs and grasses on stream banks.

b. Flood control works and instream structures should be located, designed, constructed and maintained so their resultant effects on geohydraulic shoreline processes will not cause significant damage to other properties or valuable shoreline resources, and so that the physical integrity of the shoreline process corridor is maintained.

c. To minimize flood damages and to maintain natural resources associated with streams, overflow corridors and other alternatives to traditional bank levees, revetments and/or dams should be considered. Setback levees and similar measures should be employed where they will result in lower flood peaks and velocities, and more effective conservation of resources than with high bank levees.

d. Recognizing the large number of physical variables to be considered in properly locating and designing flood control works and instream structures, such as dams and weirs, and the high probability that poorly located and inadequately designed works will fail and/or adversely affect properties and shore features, such works should be sited and designed consistent with appropriate engineering principles and WCC Title 17.

e. Nonstructural and nonregulatory methods to protect, enhance, and restore shoreline ecological functions and processes and other shoreline resources should be encouraged as an alternative to structural flood control works and instream structures. Nonregulatory and nonstructural methods may include public facility and resource planning, land or easement acquisition, education, voluntary protection and enhancement projects, or incentive programs.

f. Design of flood control works should incorporate continued long-term multiple use of shoreline resources by all appropriate user groups.

g. Design of flood control works should provide access to public shorelines whenever possible, unless it is demonstrated that public access would cause unavoidable public health and safety hazards, security problems, unmitigatable ecological impacts, unavoidable conflicts with proposed uses, or unreasonable cost. At a minimum, flood control works should not decrease public access or use potential of shorelines.

3. Coordination.

a. In cooperation with other applicable agencies and persons, the county should continue to develop long-term, comprehensive flood hazard management plans, such as the Lower Nooksack River Comprehensive Flood Hazard Management Plan, to prevent needless flood damage, maintain the natural hydraulic capacity of floodways, and conserve valuable, limited resources such as fish, water, soil, and recreation and scenic areas.

b. Planning and design of flood control works and instream structures should be consistent with and incorporate elements from applicable watershed management plans, restoration plans and/or surface water management plans.

B. Regulations.

1. Purpose and Need.

a. Flood control works shall be permitted when it is demonstrated by engineering and scientific evaluations that:

i. They are necessary to protect health/safety and/or existing development;

ii. Nonstructural flood hazard reduction measures are infeasible; and

iii. Measures are consistent with an adopted comprehensive flood hazard management plan that evaluates cumulative impacts to the watershed system.

b. New flood control works are prohibited on estuarine shores, on point and channel bars, and in salmon and trout spawning areas, except for the purpose of fish or wildlife habitat enhancement or restoration.

c. New structural flood control works shall be placed landward of associated wetlands, and designated habitat conservation areas, except for works that improve ecological functions, such as wetland restoration.

d. Revetments shall not be placed waterward of the OHWM except for weirs and current deflectors where necessary to protect bridges and roads.

e. Revetments and levees shall be designed consistent with appropriate engineering standards and WCC Title 17. Height shall be limited to the minimum required to protect the adjacent lands from the designed flood and demonstrated through hydraulic modeling that the height will not adversely impact shoreline ecological functions and processes.

f. Where flood control works are necessary, they shall be set back at convex (inside) bends to allow streams to maintain point bars and associated aquatic habitat through normal accretion. Levees that have already cut off point bars should be relocated where feasible to lower flood stages and current velocities.

g. Where levees are necessary to protect floodway fringe areas, they shall be located and designed to protect shoreline ecological functions and processes. Such works should be located near the tangent to outside meander bends so that the stream can maintain normal meander progression and utilize most of its natural flood water storage capacity.

h. Channelization projects that damage fish and wildlife resources, degrade recreation and aesthetic resources, or result in high flood stages and velocities shall not be permitted when feasible alternatives are available.

i. No motor vehicles, appliances, other similar structures or parts thereof; nor structure demolition debris; nor any other solid waste shall be used for flood control works.

j. Cut-and-fill slopes and back-filled areas shall be stabilized with brush matting and buffer strips and revegetated with native grasses, shrubs, or trees to prevent loss of shoreline ecological functions and processes.

k. Flood control works and instream structures shall be constructed and maintained in a manner that does not degrade the quality of affected waters. The county may require reasonable conditions to achieve this objective such as setbacks, buffers, or storage basins.

l. Natural instream features such as snags, uprooted trees, or stumps should be left in place unless it can be demonstrated that they are actually causing bank erosion or higher flood stages.

m. Flood control works and instream structures shall allow for normal ground water movement and surface runoff.

n. Flood control works and instream structures shall preserve valuable recreation resources and aesthetic values such as point and channel bars, islands, and braided banks.

2. Design and Operation.

a. The county shall require professionally engineered design of any proposed flood control works or instream structure.

b. The design of all dams and the suitability of the proposed site for dam construction shall be certified by a professional engineer licensed in the state of Washington. The professional design shall include a maintenance schedule.

c. For all dams that are not regulated by either the Federal Energy Regulatory Commission licensing procedures, or the State Department of Ecology reservoir permit requirements, a maintenance agreement and construction bond for 150 percent of the cost of the structure shall be filed with the director of the public works department prior to construction. The maintenance agreement shall specify who is responsible for maintenance, shall incorporate the maintenance schedule specified by the design engineer, shall require annual inspections by a civil engineer licensed in the state of Washington and shall stipulate abandonment procedures which shall include, where appropriate, provisions for site restoration.

d. No flood control works or instream structure may commence without the developer having obtained all applicable federal, state, and local permits and approvals, including but not limited to an HPA from the State Department of Fish and Wildlife.

C. Shoreline Area Regulations.

1. Urban. Flood control works and instream structures are permitted subject to policies and regulations of this program.

2. Urban Resort. Flood control works and instream structures are permitted subject to policies and regulations of this program.

3. Urban Conservancy. Flood control works and instream structures are permitted subject to policies and regulations of this program; provided, that channelization or dams for flood control are prohibited.

4. Shoreline Residential. Flood control works and instream structures are permitted subject to policies and regulations of this program.

5. Rural. Flood control works and instream structures are permitted subject to policies and regulations of this program; provided, that channelization or dams for flood control may be permitted as a conditional use.

6. Resource. Flood control works and instream structures are permitted subject to policies and regulations of this program; provided, that channelization or dams for flood control may be permitted as a conditional use.

7. Conservancy. Flood control works and instream structures are permitted subject to policies and regulations; provided, that channelization or dams for flood control are prohibited.

8. Natural. Flood control works and instream structures are prohibited except for normal maintenance and repair.

9. Aquatic. Flood control works and instream structures are permitted subject to the use and development regulations of the abutting upland shoreline area designation. (Ord. 2014-051 § 4; Ord. 2009-13 § 1 (Exh. 1)).

23.100.070 Industrial and port development.

Industrial and port development in shoreline areas outside of the Cherry Point management area shall be subject to the policies and regulations of this section and Chapter 23.90 WCC.

Cherry Point Management Area. All industrial and port development in shorelines within the Cherry Point management area as defined in Chapter 23.110 WCC shall be subject to the policies and regulations found in WCC 23.100.170 instead of the policies and regulations of this section, unless otherwise specified therein.

A. Policies.

1. Shoreline sites particularly suitable for development such as deep water harbors with access to adequate rail, highway and utility systems should be reserved for water-dependent or water-related industrial and port development.

2. In order to provide adequate shoreline for future water-dependent and water-related uses, industrial or port development at deep water sites should be limited to those uses that produce the greatest long-term economic base. Industrial and port development that is consistent with this program should be protected from encroachment or interference by incompatible uses with less stringent siting requirements, such as residential or commercial uses. Mixed use development, including non-water-dependent uses, should only be allowed when they include and support water-dependent uses.

3. Regional needs for port facilities should be carefully considered in reviewing new port proposals and in allocating shorelines for such development. Such reviews or allocations should be coordinated with port districts, adjacent counties and cities, and the state. Existing, officially designated State Harbor Areas should be used for new port development to the maximum extent whenever possible.

4. Multiple use of industrial and port facilities is encouraged to limit duplicative facilities and reduce adverse impacts. Multiple use should be implemented in the following manner:

a. Cooperative use of piers, cargo handling, storage, parking and other accessory facilities among private or public entities should be required in industrial or port facilities whenever feasible. New facilities for water-dependent uses should be allowed only after assessment of the potential for shared use of existing facilities.

b. Industrial and port developments should provide opportunities for physical and/or visual public shoreline access in accordance with the public access policies, including recreational use of undeveloped shorelines not needed for port or industry operations; provided, that such uses are safely compatible with facility operations.

5. Industrial and port development in the shoreline should be located and designed to avoid significant adverse impacts to other shoreline uses, resources, and values, including shoreline geomorphic processes, water quality, fish and wildlife habitat, commercial aquaculture, and the aquatic food chain.

6. Restoration of impaired shoreline ecological functions and processes should be encouraged as part of industrial and port development.

B. Regulations.

1. Purpose and Need.

a. Water-dependent industrial and port uses designed, developed and operated consistent with the policies and regulations of this program shall be given preference over all other uses on the shoreline.

b. All harbor areas, established pursuant to Article XV of the Washington State Constitution, that have reasonable commercial navigational accessibility and necessary support facilities such as transportation shall be reserved for water-dependent and water-related uses that are associated with commercial navigation unless a specific finding is made in the permit review process that adequate shoreline is reserved for navigation use elsewhere in the affected harbor area.

c. Industrial and port uses that result in no net loss of shoreline ecological functions and processes are allowed subject to the policies and regulations of WCC 23.90.030 and the specific criteria below:

i. Water-dependent industrial and port uses shall be given preference over water-related and water-enjoyment industrial and port uses. Prior to approval of water-dependent industrial or port uses, the administrator shall review a proposal for design, layout and operation of the proposed use and shall make specific findings that the use qualifies as a water-dependent use.

ii. Water-related industrial and port uses may not be approved if they displace existing water-dependent uses. Prior to approval of water-related industrial or port uses, the administrator shall review a proposal for design, layout and operation of the proposed use and shall make specific findings that the use qualifies as a water-related use.

iii. Water-enjoyment industrial and port uses may be not be approved if they displace existing water-dependent or water-related uses or if they occupy space designated for water-dependent or water-related use identified in a substantial development permit or other approval. Prior to approval of water-enjoyment industrial or port uses, the administrator shall review a proposal for design, layout and operation of the proposed use and shall make specific findings that the use qualifies as a water-enjoyment use.

iv. Non-water-oriented industrial and port uses may be permitted where located on a site physically separated from the shoreline by another property in separate ownership or a public right-of-way such that access for water-oriented use is precluded. All other non-water-oriented industrial and port uses are prohibited in the shoreline unless the use provides significant public benefit with respect to the objectives of the Act and is:

(A) Part of a mixed use project that includes a water-oriented use; or

(B) Proposed on a site where navigability is severely limited.

v. When permitted, non-water-oriented industrial and port uses shall provide access and/or restoration as follows:

(A) Non-water-oriented industrial and port uses shall provide public access in the form of unrestricted open space. The administrator shall determine the amount of required access in accordance with the provisions of WCC 23.90.080 on a case-by-case basis.

(B) If no water-oriented uses are located on or adjacent to the water as part of a mixed use development, 80 percent of the shoreline and associated buffers shall be restored to provide shoreline ecological functions that approximate the functions provided by the site in natural conditions.

(C) The requirements in subsections (B)(1)(c)(v)(A) and (B) of this section may be modified when:

(1) The site is designated as a public access area by a shoreline public access plan, in which case public access consistent with that plan element shall be provided; or

(2) Specific findings are made demonstrating that the size of the parcel and the presence of adjacent uses preclude restoration of shoreline ecological functions. Where on-site restoration is infeasible, equivalent off-site restoration shall be provided consistent with the policies and regulations of this program.

(D) Buffers shall be designed as appropriate to protect shoreline resources based on a specific restoration plan and may differ from the standard critical area buffer dimensions provided in Chapter 16.16 WCC; provided, that the building envelope for the proposed non-water-oriented use shall be based on current site conditions.

(E) If water-oriented uses are located on or adjacent to the water, the remaining undeveloped water frontage that is not devoted to water-dependent use shall be preserved if in a substantially unaltered condition. If the site has been previously altered by past development, the balance of the site may be reserved for future water-related use.

(F) The requirements of this section shall not apply to those non-water-oriented industrial or port uses located on a site physically separated from the shoreline where access to the land/water interface is precluded; provided, that such conditions were lawfully established prior to the effective date of this program.

vi. Interim use of facilities approved and/or permitted for water-dependent use for non-water-dependent uses may be approved by a conditional use permit under the following conditions:

(A) A specific occupancy plan has been approved that allows interim uses for a specific period while the market for water-dependent uses is being developed, and the proposed interim use is consistent with the occupancy plan.

(B) The period of interim lease or commitment of the space shall not exceed five years. At the end of five years, a new application for interim use shall be submitted.

(C) A good faith effort to obtain water-dependent uses has been made and suitable tenants were not found. The period of the search for water-dependent uses, the notice of availability, listing or advertising employed, and any inquiries received shall be documented.

(D) No permanent improvements will be made to the space that requires more than five years of occupancy to repay the investment. No permanent improvements will be made that will reduce the suitability of the space for water-dependent use.

d. Required setback areas shall not be used for storage of industrial equipment or materials, or waste disposal, but may be used for outdoor recreation. Portions of such setbacks may be used for motor vehicle parking if design of such facilities is consistent with this program and critical area regulations in Chapter 16.16 WCC.

e. Disposal or storage of solid or other industrial wastes is not permitted on shorelines; except that liquid waste treatment facilities may be permitted as a conditional use if it is demonstrated that a shoreline location is required or where it is demonstrated that an alternative site outside of the shoreline is not feasible; and further excepted, that land application of waters used in the processing of fruits and vegetables within the shoreline is permitted as a conditional use.

f. Minimum required setbacks from shorelines and side property lines, maximum height limits and open space requirements are contained in WCC 23.90.130, Shoreline bulk provisions – Buffers, setbacks, height, open space and impervious surface coverage.

2. Log Rafts and Storage.

a. Storage of logs is prohibited in water bodies, except where an upland location is not feasible; provided, that no new log storage may be allowed in marine or estuarine waters or tidelands.

b. Log rafting shall be allowed in cases where overland transportation of logs would produce unacceptable transportation impacts, or for transportation of logs from islands or from other locations in Puget Sound. Areas for assembly and disassembly of log rafts shall meet all standards below for log storage.

c. Offshore log storage shall only be allowed on a temporary basis, and should be located where natural tidal or current flushing and water circulation are adequate to disperse polluting wastes.

d. Log rafting or storage operations are required to implement the following, whenever applicable:

i. Logs shall not be dumped, stored, or rafted where grounding will occur.

ii. Easy let-down devices shall be provided for placing logs in water.

iii. Bark and wood debris controls and disposal shall be implemented at log dumps, raft building areas, and mill-side handling zones. Accumulations of bark and other debris on the land and docks around dump sites shall be fully contained and kept out of the water.

iv. Where water depths will permit the floating of bundled logs, they shall be secured in bundles on land before being placed in the water. Bundles shall not be broken again except on land or at mill sites.

e. Impervious pavement is required for log yards where the wet season water table is less than four feet below surface level in order to reduce waste buildup and impacts on ground water and surface water.

f. Stormwater management facilities shall be provided to protect the quality of affected waters.

g. Log storage facilities shall be located upland and properly sited to avoid fish and wildlife habitat conservation areas.

h. Log storage facilities must be sited to avoid and minimize the need for dredging in order to accommodate new barging activities at the site.

i. Log storage facilities shall be located in existing developed areas to the greatest extent feasible. If a new log storage facility is proposed along an undeveloped shoreline, an alternatives analysis shall be required.

j. A berm must be located around the outer edge of the upland sort surface using rocks, or other suitable materials to prevent loss of wood debris into the water.

k. Log booming shall only be allowed offshore in sub-tidal waters in order to maintain unimpeded nearshore migration corridors for juvenile salmonids and to minimize shading impacts from log rafts. Log booming activities include the placement in or removal of logs and log bundles from the water, and the assembly and disassembly of rafts for water-borne transportation.

l. A debris management plan describing the removal and disposal of wood waste must be developed and submitted to the county. Debris monitoring reports shall be provided, where stipulated.

m. Existing in-water log storage and log booming facilities in critical habitats utilized by threatened or endangered species classified under ESA shall be reevaluated if use is discontinued for two years or more, or if substantial repair or reconstruction is required. The evaluation shall include an alternatives analysis in order to determine if logs can be stored upland and out of the water, or if the site should be used for other purposes that would have lesser impacts on ESA-listed species. The alternatives analysis shall include evaluation of the potential for moving all, or portions of, log storage and booming to uplands.

3. Hydropower Development.

a. Hydropower facilities shall be located, designed, and operated to minimize impacts to fish and wildlife resources including spawning, nesting and rearing habitat and migratory routes, and critical areas. Mitigation measures to achieve no net loss of shoreline ecological functions and processes shall be implemented in accordance with WCC 23.90.030.

b. Hydropower facilities shall be located, designed and operated to protect and minimize impacts to geohydraulic processes; waterfalls; erosion and accretion shoreforms; agricultural land; scenic vistas; recreation sites; and sites having significant historical, cultural, scientific or educational value.

c. Hydropower facilities shall accommodate public access to, and multiple use of, the shoreline.

d. For all dams that are not regulated by either the Federal Energy Regulatory Commission licensing procedures, or the State Department of Ecology reservoir permit requirements, a maintenance agreement and construction bond for 150 percent of the cost of the structure shall be filed with the director of the public works department prior to construction. The maintenance agreement shall specify who is responsible for maintenance, shall incorporate the maintenance schedule specified by the design engineer, shall require annual inspections by a civil engineer licensed in the state of Washington and shall stipulate abandonment procedures which shall include, where appropriate, provisions for site restoration.

e. The design of all dams and the suitability of the proposed site for dam construction shall be certified by a professional engineer licensed in the state of Washington. The professional design shall include a maintenance schedule.

C. Shoreline Area Regulations.

1. Urban. Water-oriented industrial and port use and development are permitted subject to policies and regulations of this program. Non-water-oriented industrial or port use and development may be permitted as a conditional use, subject to criteria for such uses in subsection (B)(1)(c)(iv) of this section. Dams, diversion, and tailrace structures and accessory development for hydroelectric power generation may be permitted as a conditional use.

2. Urban Resort. Port development limited to passenger terminals is permitted. All other industrial or port use and development is prohibited.

3. Urban Conservancy. Industrial or port use and development are prohibited, except that dams, diversion, and tailrace structures and accessory development for hydroelectric power generation may be permitted as a conditional use.

4. Shoreline Residential. Industrial or port use and development are prohibited, except that dams, diversion, and tailrace structures and accessory development for hydroelectric power generation may be permitted as a conditional use.

5. Rural.

a. Water-oriented port development and industrial facilities for processing, manufacturing, and storage of finished or semi-finished goods are permitted.

b. Non-water-oriented industrial or port use and development may be permitted as a conditional use, subject to criteria for such uses in subsection (B)(1)(c)(iv) of this section.

c. Dams, diversion and tailrace structures and accessory development for hydroelectric power generation may be permitted as a conditional use.

6. Resource.

a. Water-oriented facilities for processing, manufacturing, and storage of natural resource products are permitted subject to the policies and regulations of this program.

b. Non-water-oriented facilities for processing, manufacturing and storage of natural resource products, subject to criteria for such uses in subsection (B)(1)(c)(iv) of this section, and other water-oriented industrial or port use and development may be permitted as a conditional use.

c. Dams, diversion and tailrace structures and accessory development for hydroelectric power generation may be permitted as a conditional use.

d. Other non-water-oriented industrial or port use and development are prohibited.

7. Conservancy. Industrial or port use and development are prohibited, except that dams, diversion, and tailrace structures and accessory development for hydroelectric power generation may be permitted as a conditional use.

8. Natural. Industrial or port use and development are prohibited.

9. Aquatic. Water-dependent industrial or port use and development are permitted, subject to the use and development regulations of the abutting upland shoreline area designation. Log storage may be permitted as a conditional use. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.080 Mining.

Mining in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC.

The removal of gravel for flood management purposes shall be regulated in accordance with the policies and regulations for flood control works and instream structures under WCC 23.100.060.

A. Policies.

1. Mining should not be located on shorelines where unavoidable adverse impacts on other users or resources together equal or outweigh the benefits from mining.

2. Mining should not interfere with public recreation on the shoreline.

3. Mining should be located and operated so as to provide long-term protection of water quality, fish and wildlife, and fish and wildlife habitat.

4. Mining, particularly surface or strip mining, should provide for timely restoration of disturbed areas to a biologically productive, semi-natural, or other useful condition through a reclamation process consistent with regulations administered by the Department of Natural Resources and other applicable county standards.

5. Mining of marine and lake shores or accretional shoreforms, such as point bars, that have a high value for recreation or as fish or wildlife habitat should generally not be permitted.

6. Mining should only be permitted on accretion point and channel bars where appropriate studies and detailed operation plans demonstrate that:

a. Fish habitat, upland habitat and water quality will not be significantly impacted; and

b. The operation will not adversely affect geohydraulic processes, channel alignment, nor increase bank erosion or flood damages.

7. Mining operations should be located, designed, and managed so that other appropriate uses are not subjected to substantial or unnecessary adverse impacts from noise, dust or other effects of the operation. The operator may be required to implement measures such as buffers, limited hours, or other mitigating measures for the purpose of minimizing adverse proximity impacts.

B. Regulations.

1. New mining and associated activities shall be designed and conducted to result in no net loss of shoreline ecological functions and processes in accordance with WCC 23.90.030. Mining should not be approved where it could interfere with shoreline ecological functions or processes or cause irreparable damage to shoreline resources or features such as accretion shoreforms. Application of this standard shall include avoidance and mitigation of adverse impacts during the course of mining and reclamation. The determination of whether there will be no net loss of ecological function shall be based on an evaluation of the reclamation plan required for the site and shall consider impacts on ecological functions during operation. Preference shall be given to mining proposals that result in the creation, restoration, or enhancement of habitat for priority species.

2. Mining shall not be permitted in critical areas except as a part of an approved flood control program or in conjunction with a habitat restoration or enhancement plan; provided, that such activities may be permitted where demonstrated to be water-dependent. A determination of water-dependency shall be based on evaluation of geologic factors such as the distribution and availability of mineral resources for that jurisdiction, as well as evaluation of need for such mineral resources, economic, transportation, and land use factors. This showing may rely on analysis or studies prepared for purposes of GMA designations, be integrated with any relevant environmental review conducted under SEPA (Chapter 43.21C RCW), or otherwise be shown in a manner consistent with RCW 90.58.100(1) and WAC 173-26-201(2)(a).

3. Application for permits for mining operations shall be accompanied by operation plans, reclamation plans and analysis of environmental impacts in accordance with WCC 20.73.700. Such information shall provide sufficient documentation to make a determination as to whether the project will result in net loss of shoreline ecological functions and processes during the course of mining and after reclamation. Creation, restoration, or enhancement of habitat for priority species and the future productivity of the site may be considered in determining no net loss of ecological functions.

4. The applicant/proponent must show that mining is dependent on a shoreline location, and that demand cannot reasonably be accommodated in operations outside shoreline jurisdiction. Information required to meet this criterion shall evaluate geologic factors such as the distribution and availability of mineral resources as well as evaluation of need for such mineral resources, economic, transportation, and land use factors.

5. Where a lawfully established mining operation has resulted in the creation of a lake(s) greater than 20 acres and such lake(s) is subject to the provisions of the shoreline management program and the Act, such lake(s) shall be given a resource shoreline area designation. Notwithstanding any other applicable regulations, such mining operations shall be permitted to continue and may be expanded subject to approval of a shoreline conditional use permit.

6. Reclamation Plan.

a. A reclamation plan that complies with the format and detailed minimum standards of Chapter 78.44 RCW shall be included with any shoreline permit application for mining.

b. A reclamation plan that is inconsistent with this program or the Act shall constitute sufficient grounds for denial of a shoreline permit; provided, that the applicant/proponent shall be given reasonable opportunity to revise the plan.

7. In considering renewal, extension or reauthorization of gravel bar and other in-channel mining operations in locations where they have previously been conducted, the county shall require compliance with this subsection.

8. Marine and Lake Shores.

a. Mining of, including but not limited to, sand, gravel, cobbles, or boulders from any marine or lake shore is prohibited.

b. Mining of quarry rock may be permitted as a conditional use; provided, that shore processes and resources are not adversely affected.

9. Rivers and Streams. Scalping of accretional point bars may be permitted as a conditional use for flood control purposes and market demands under the following conditions:

a. Removal of specified quantities of sand and gravel or other materials at specific locations will not adversely affect the natural processes of gravel transportation for the river system as a whole. Specific studies accompanying the application shall demonstrate that no adverse flood, erosion, or other environmental impacts occur either upstream or downstream of extraction sites. Mining extraction amounts, rates, timing, and locations shall be based on a scientifically determined sediment budget adjusted periodically according to data provided by a regular monitoring plan.

b. Aggregate washing and ponding of waste water are prohibited in floodways.

c. Storage within the FEMA floodway is prohibited in the shoreline during the flood season (November 1st through March 1st); provided, that temporary stockpiling is permitted during working hours if all such materials are removed from the floodway at the end of each day’s operation.

d. All applicable permits and approvals, including, but not limited to, hydraulic project approval (HPA) from the Department of Fish and Wildlife and a Whatcom County flood permit, shall be obtained and all applicable provisions attached thereto shall be adhered to.

e. Mining within a designated channel migration zone may be approved as a conditional use.

10. Open pit mining may be permitted in a floodplain; provided, that all of the following criteria are met:

a. All pits and other operations should be located outside of the channel migration zone.

b. All pits of each operation should be located and excavated to a depth so as to function as a self-flushing chain of lakes whenever the pits are overtopped by floods in order to prevent eutrophication and fish entrapment.

c. The entire operation should be sized and designed so that neither additional bank erosion, catastrophic changes in channel location, nor adverse impact to fish resources or water quality will likely result in the long term.

d. The scale and mode of operation will not have adverse impacts on fish resources, water quality, and recreation resources, nor adversely impact a stream’s natural capacity to erode, shift, accrete, and/or flood.

e. All equipment, works and structures are designed to withstand flooding without becoming a hazard in themselves nor causing adverse effects on shore features, without the necessity for shore stabilization structures.

f. All structures or equipment which are not flood-proof shall be located outside of the 100-year floodplain during the flood season (November 1st through March 1st); provided, that such equipment is permitted during daily operations.

11. Overburden.

a. Overburden or other mining spoil or nonputrescible solid wastes shall be disposed of in an appropriate manner to protect shoreline ecological functions and processes, other uses, and aesthetic values.

b. Disposal of overburden or mining spoil on shorelines shall comply with landfill policies and regulations of WCC 23.90.100.

12. Surface Oil, Coal Bed or Gas Drilling. As provided in the Act (RCW 90.58.160), surface drilling for oil or gas is prohibited in the waters of Puget Sound north to the Canadian boundary and the Strait of Juan de Fuca waterward from OHWM and on all lands within 1,000 feet landward therefrom. Coal bed drilling is also prohibited.

C. Shoreline Area Regulations.

1. Urban. Mining is prohibited.

2. Urban Resort. Mining is prohibited.

3. Urban Conservancy. Mining is prohibited.

4. Shoreline Residential. Mining is prohibited.

5. Rural. Mining may be permitted as a conditional use subject to policies and regulations of this program.

6. Resource. Mining may be permitted as a conditional use subject to policies and regulations of this program.

7. Conservancy. Mining may be permitted as a conditional use subject to policies and regulations of this program.

8. Natural. Mining is prohibited.

9. Aquatic. Mining is prohibited, except that accretional bar scalping in streams may be permitted as a conditional use subject to policies and regulations of this program; provided, that upon approval by the county and Ecology of a sediment management plan component for a mutually designated reach of river, including incorporating the findings of a programmatic environmental impact statement, the conditional use requirement will no longer be in effect unless mutually agreed to in said management plan. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.090 Moorage – Docks, piers and mooring buoys.

Moorage including docks, piers and mooring buoys in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC. Shared moorage with more than four berths and boat launching facilities are regulated under WCC 23.100.040, Boating facilities – Marinas and launch ramps.

A. Policies.

1. Moorage associated with a single-family residence is considered a water-dependent use; provided, that it is designed and used as a facility to access watercraft, and other moorage facilities are not available or feasible. Moorage for water-related and water-enjoyment uses or shared moorage for multifamily use should be allowed as part of a mixed use development or where it provides public access.

2. New moorage, excluding docks accessory to single-family residences, should be permitted only when the applicant/proponent has demonstrated that a specific need exists to support the intended water-dependent or public access use.

3. As an alternative to continued proliferation of individual private moorage, mooring buoys are preferred over docks or floats. Shared moorage facilities are preferred over single-user moorage where feasible, especially where water use conflicts exist or are predictable. New subdivisions of more than two lots and new multifamily development of more than two dwelling units should provide shared moorage.

4. Docks, piers and mooring buoys, including those accessory to single-family residences, should avoid locations where they will adversely impact shoreline ecological functions or processes, including currents and littoral drift.

5. Moorage should be spaced and oriented in a manner that minimizes hazards and obstructions to public navigation rights and corollary rights thereto such as, but not limited to, fishing, swimming and pleasure boating, as well as private riparian rights of adjacent land owners.

6. Moorage should be restricted to the minimum size necessary to meet the needs of the proposed use. The length, width and height of piers and docks should be no greater than that required for safety and practicality for the primary use.

7. Pile supports are preferred over fills because piles do not displace water surface and intertidal or aquatic habitat and are removable and thus more flexible in terms of long-term use patterns. Floats may be less desirable than pile structures where aquatic habitat or littoral drift are significant.

8. The use of buoys for small craft moorage is preferred over pile or float structures because of lesser long-term impact on shore features and users; moorage buoys should be placed as close to shore as possible to minimize obstruction to navigation.

9. Shoreline resources and water quality should be protected from overuse by boaters living on vessels (live aboards). Boaters living on vessels are restricted to established marinas with facilities to address waste handling and other sanitary services.

10. Vessels should be restricted from extended mooring on waters of the state unless authorization is obtained from the DNR and impacts to navigation and public access are mitigated.

11. Piers and docks should be constructed of materials that will not adversely affect water quality or aquatic plants and animals in the long term.

12. New pier and dock development should be designed so as not to interfere with lawful public access to or use of shorelines. Developers of new piers and shared moorage should be encouraged to provide physical or visual public access to shorelines whenever safe and compatible with the primary use and shore features.

B. Regulations.

1. Shared moorage to serve new development shall be limited to the amount of moorage needed to serve lots with water frontage; provided, that a limited number of upland lots may also be accommodated. Applications for shared moorage shall demonstrate that mooring buoys are not feasible prior to approval of dock moorage. Shared moorage currently leased or proposed to be leased to upland property owners shall be reviewed as a marina.

2. Private recreational moorage for individual lots is permitted in existing subdivisions approved on or before January 28, 1993, only where shared moorage has not already been developed. Prior to development of a new dock for a single residential lot, the applicant/proponent shall demonstrate that:

a. Existing facilities in the vicinity, including marinas and shared moorage, are not adequate or feasible for use;

b. On marine shorelines, alternative moorage, such as mooring buoys or a dock sized to accommodate a tender to provide access in conjunction with a mooring buoy, are not adequate or feasible; and

c. The applicant/proponent has contacted abutting property owners and none have indicated a willingness to share an existing dock or develop a shared moorage in conjunction with the applicant/proponent.

d. If allowed, only one private dock shall be permitted on a shoreline residential lot.

3. Shared moorage shall be required in accordance with the following to prevent the proliferation of moorage facilities:

a. Shared moorage shall be provided for all new residential developments of more than two dwelling units. New subdivisions shall contain a restriction on the face of the plat prohibiting individual docks. A site for shared moorage should be owned in undivided interest by property owners within the subdivision. Shared moorage facilities shall be available to property owners in the subdivision for community access and may be required to provide public access depending on the scale of the facility. If shared moorage is provided, the applicant/proponent shall file at the time of plat recordation a legally enforceable joint use agreement or other legal instrument that, at minimum, addresses the following:

i. Apportionment of construction and maintenance expenses;

ii. Easements and liability agreements; and

iii. Use restrictions.

b. On marine shorelines a dock or pier may be approved only if it is not feasible to provide mooring buoys with an adequate landing area or a dock sized to accommodate tenders.

c. Where a multifamily residential development, camping club or subdivision development provides shared moorage, space for the number of waterfront lots or dwelling units may be provided with an additional provision for sites without water frontage up to a ratio of 1.25 moorage spaces per total lots or units.

d. Prior to issuing a permit for shared moorage, a proponent shall file with the Whatcom County auditor a legally enforceable joint use agreement that, at minimum, addresses the following:

i. Apportionment of construction and maintenance expenses;

ii. Easements and liability agreements; and

iii. Use restrictions.

4. Commercial docks shall be permitted only for water-dependent uses, and only if the applicant/proponent demonstrates that existing facilities in the vicinity, including marinas and shared moorage, are not adequate or feasible for the proposed water-dependent use.

5. Private moorage for float planes may be permitted as a conditional use where construction will not adversely affect shoreline functions or processes, including wildlife use. Ecological restoration may be required to compensate for the greater intensity of activity associated with the use.

6. Piers and docks shall be constructed of materials that will not adversely affect water quality or aquatic plants and animals over the long term. Materials used for submerged portions of a pier or dock, decking and other components that may come in contact with water shall be approved by applicable state agencies for use in water to avoid discharge of pollutants from wave splash, rain or runoff. Wood treated with creosote, pentachlorophenol or other similarly toxic materials is prohibited. Piers and docks in lakes providing a public water supply shall be constructed of untreated materials, such as untreated wood, approved plastic composites, concrete or steel.

7. Piers and docks shall be the minimum size necessary to meet the needs of the proposed water-dependent use and shall observe the following criteria:

a. If allowed under the provisions of this program, only one private dock with one accessory float, one boat lift, and one covered moorage accessory to a permitted moorage, shall be permitted on a shoreline lot owned for residential or private recreational use.

b. Docks with or without a float shall be the minimum size required to provide for moorage. Single-family docks and floats shall not exceed 40 feet in length measured perpendicularly from the OHWM nor exceed three feet in height above the extreme high water level. Shared moorage may extend to 80 feet in length if demonstrated to be necessary to provide adequate moorage. In the case of pile docks at marine or river locations, the height shall be limited to that which may be reasonably necessary to accommodate landing and moorage of watercraft. Commercial docks shall be the minimum length necessary to serve the type of vessel served.

c. Private docks up to 60 feet in length or shared moorage up to 100 feet in length measured perpendicularly from the OHWM, including floats, may be permitted by the administrator in shallow areas where a dock sized to accommodate a tender to provide access to a mooring buoy is not feasible and where existing docks on adjacent properties presently extend out as far as that which is proposed, and where such added length is necessary in order to allow a reasonable use of the dock, as determined based upon adjacent uses; and where the extension in dock length will not adversely affect ecological processes and functions, provided the required dock length is the minimum necessary to achieve such purposes. Docks that cannot reasonably meet this standard may request a review under the variance provisions of this program.

d. Moorage shall be designed to avoid the need for maintenance dredging. The moorage of a boat larger than provided for in the original moorage design shall not be grounds for approval of dredging.

8. In order to minimize impacts on nearshore areas and avoid reduction in ambient light level:

a. The width of piers, docks and floats shall be the minimum necessary and shall not exceed four feet in width, except where specific information on use patterns justifies a greater width. Marine floats shall not exceed eight feet in width nor 40 feet in length and freshwater floats shall not exceed six feet in width and 20 feet in length unless authorized by a variance. Exceptionally large vessels or vessels that require a relatively deep draft may be required to use a buoy, other alternative mooring scheme, or to moor in a marina. Materials that will allow light to pass through the deck may be required where width exceeds four feet.

b. Dock surfaces designed to allow maximum light penetration shall be used on walkways or gangplanks in nearshore areas.

c. Piers, docks and floats shall be located along a north/south orientation to the maximum extent feasible.

9. Private docks shall not encroach into the required sideyard setbacks for residential development (both onshore and offshore); provided, that a shared moorage may be located adjacent to or upon a side property line of the affected properties upon filing of an easement agreement or other legal instrument by the affected property owners.

10. Dock and Pier Design.

a. Piers and docks shall use pile supports unless engineering studies demonstrate that pile supports are insufficient to ensure public safety. Riprapped or bulkheaded fills may be approved only as a conditional use and only when demonstrated that no feasible alternative is available. Mitigation shall be provided to ensure no net loss of shoreline ecological functions and processes.

b. Approaches to piers and docks shall use piers or other structures to span the entire upper foreshore to the point of intersection with stable upland soils and shall be design to avoid interference with littoral drift or wave refraction. Limited fill or excavation may be allowed landward of the OHWM to match the upland with the elevation of the pier or dock.

c. Pile spacing shall be the maximum feasible to minimize shading and avoid a “wall” effect that would block or baffle wave patterns, currents, littoral drift, or movement of aquatic life forms, or result in structure damage from driftwood impact or entrapment.

d. Offshore and foreshore pile structures shall allow for continuity of hydraulic energy patterns, unless specifically designed to reduce wave impact on shores.

11. Moorage buoys shall be placed at a distance specified by the Washington Department of Fish and Wildlife, the Washington Department of Natural Resources, and the U.S. Coast Guard to balance the goals of avoiding nearshore habitat and minimizing obstruction to navigation. Anchors and other design features shall meet Washington Department of Fish and Wildlife standards.

12. A covered moorage accessory to a single-family pier or dock, not accessory to a marina, shall have no walls other than an open structural framework to support a roof and shall not cover more than 200 square feet nor exceed 15 feet in height above OHWM. Roof materials shall be translucent, or at least 50 percent clear skylights.

13. Commercial covered moorage may be permitted only where vessel construction or repair work is to be the primary activity and covered work areas are demonstrated to be the minimum necessary over water, including demonstration that adequate upland sites are not feasible.

14. No private or shared moorage may be constructed to within 200 feet of OHWM on the opposite shore of any lake or semi-enclosed body of water such as a bay, cove, or natural channel. This restriction shall not apply within marinas, dredged canal systems or approved marina-home developments.

15. If a dock is provided with railing, such railing shall not exceed 36 inches in height and shall be an open framework that does not unreasonably interfere with shoreline views of adjoining properties or lawful use of water surfaces.

16. Water supply, sewage disposal and disposal of nonhazardous materials associated with activities on docks and piers shall conform to applicable health standards.

17. Moorage facilities shall be marked with reflectors, or otherwise identified to prevent unnecessarily hazardous conditions for water surface users during the day or night. Exterior finish shall be generally nonreflective.

18. Moorage facilities shall be constructed and maintained so that no part of a facility creates hazardous conditions nor damages other shore property or natural features during predictable flood conditions. Floats shall be securely anchored.

19. No pier or dock shall be used for a residence.

20. Storage of fuel, oils, and other toxic materials is prohibited on docks and piers except portable containers when provided with secondary containment.

21. Public access facilities shall be provided in accordance with policies and regulations in WCC 23.90.080.

C. Shoreline Area Regulations.

1. Urban. Private and shared moorage are permitted subject to policies and regulations of this program. Public, commercial and industrial moorage, including expansion of existing piers, and covered moorage or floatplane moorage accessory to a permitted moorage may be permitted as a conditional use.

2. Urban Resort. Private, shared and public moorage, and covered moorage or floatplane moorage accessory to a permitted moorage, may be permitted as a conditional use subject to the policies and regulations of this program. Commercial moorage is prohibited, except piers serving small passenger vessels may be permitted as a conditional use. Industrial moorage is prohibited.

3. Urban Conservancy. Private and shared moorage on nonmarine shorelines are permitted subject to policies and regulations of this program. Private and shared moorage on marine shorelines, other than constructed marinas or canals, may be permitted as a conditional use. Public and commercial moorage, including the expansion of existing piers, and floatplane moorage accessory to a permitted moorage may be permitted as a conditional use. Industrial and covered moorage are prohibited.

4. Shoreline Residential. Private and shared moorage are permitted subject to policies and regulations of this program. Public and commercial moorage, including expansion of existing piers, and covered moorage or floatplane moorage accessory to a permitted moorage may be permitted as a conditional use. Industrial moorage is prohibited.

5. Rural. Private and shared moorage are permitted subject to policies and regulations of this program. Public, industrial and commercial moorage, including expansion of existing piers, and floatplane moorage accessory to a permitted moorage may be permitted as a conditional use. Covered moorage is prohibited.

6. Resource. Private and shared moorage are permitted subject to policies and regulations of this program. Public, industrial and commercial moorage, including expansion of existing piers, and floatplane moorage accessory to a permitted moorage may be permitted as a conditional use. Covered moorage is prohibited.

7. Conservancy. Private and shared moorage on nonmarine shorelines are permitted subject to policies and regulations of this program. Private and shared moorage on marine shorelines, other than constructed marinas or canals, may be permitted as a conditional use. Public and commercial moorage, including the expansion of existing piers, and floatplane moorage accessory to a permitted moorage may be permitted as a conditional use. Industrial and covered moorages are prohibited.

8. Natural. Moorage is prohibited, except public access, interpretive or nature observation facilities that are compatible with the area’s physical and visual character may be conditionally permitted subject to policies and regulations of this program. Covered and floatplane moorage are prohibited.

9. Aquatic. Moorage is permitted, subject to the use and development regulations of the abutting upland shoreline area designation. Unless authorized by WA DNR or its designees, extended moorage longer than 60 consecutive days in one location shall be considered an obstruction which interferes with the normal public use of the surface of the waters of the state, and is prohibited. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.100 Recreation.

Shoreline recreation shall be subject to the policies and regulations of this section and Chapter 23.90 WCC.

A. Policies.

1. Shoreline recreational development should be given priority for shoreline location to the extent that the use facilitates the public’s ability to reach, touch, and enjoy the water’s edge, to travel on the waters of the state, and to view the water and the shoreline. Where appropriate, such facilities should be dispersed along the shoreline in a manner that supports more frequent recreational access and aesthetic enjoyment of the shoreline for a substantial number of people.

2. Recreational developments should facilitate appropriate use of shoreline resources while conserving them. These resources include, but are not limited to: accretion shoreforms, wetlands, soils, ground water, surface water, native plant and animal life, and shore processes.

3. Recreational development requiring extensive structures, utilities and roads and/or substantial modifications of topography or vegetation removal should not be located or expanded in areas where damage to persons, property, and/or shoreline functions and processes is likely to occur.

4. Recreational developments and plans should provide the regional population a varied and balanced choice of recreation experiences in appropriate locations. Public agencies and private developers should coordinate their plans and activities to provide a wide variety of recreational opportunities without needlessly duplicating facilities.

5. Trail links between shoreline parks and public access points should be encouraged for walking, horseback or bicycle riding and other nonmotorized vehicle access where appropriate. The Whatcom County Comprehensive Park and Recreation Open Space Plan should be considered in design and approval of public trail systems.

6. Access to natural character recreational areas, including but not limited to beaches and fishing streams, should be a combination of linear shoreline trails or easements and small parking or access tracts to minimize user concentration on small portions of the shoreline.

7. Recreation facilities should incorporate public education regarding shoreline ecological functions and processes, the role of human actions on the environment and the importance of public involvement in shorelines management. Opportunities incorporating educational and interpretive information should be pursued in design and operation of recreation facilities and nature trails.

8. Reasonable physical or visual public access to shorelines should be provided and integrated with recreational developments in accordance with WCC 23.90.080.

9. Recreation development should be located only where utility and road capability is adequate, or may be provided without significant damage to shore features commensurate with the number and concentration of anticipated users.

10. Cooperative efforts among public and private persons toward the acquisition and/or development of suitable recreation sites or facilities should be explored to assure long-term availability of sufficient public sites to meet local recreation needs.

B. Regulations. Where significant adverse impacts are adequately mitigated, recreational development is a priority use for shoreline location, subject to the following:

1. Water-related and water-enjoyment uses do not displace water-dependent uses and are consistent with existing water-related and water-enjoyment uses.

2. Activities provided by recreational facilities must bear a substantial relationship to the shoreline, or provide physical or visual access to the shoreline. Facilities for water-dependent recreation such as fishing, clam digging, swimming, boating, and wading, and water-related recreation such as picnicking, hiking, and walking should be located near the shoreline, while non-water-related recreation facilities shall be located inland.

3. Recreation areas or facilities on the shoreline shall provide physical or visual public access consistent with the criteria of WCC 23.90.080.

4. Recreational facilities with large grass areas, such as golf courses and playing fields, and facilities with extensive impervious surfaces shall incorporate means to prevent erosion, control the amount of runoff, and prevent harmful concentrations of chemicals and sediment from entering water bodies in accordance with the policies and regulations of WCC 23.90.040.

5. Recreational use of motor vehicles including unlicensed off-road vehicles is permitted only on roads or trails specifically designated for such use. Such use is prohibited on tidelands, backshore beaches, streams, or wetlands; except as necessary for public health and safety or maintenance.

C. Shoreline Area Regulations.

1. Urban. Water-oriented recreational use and development is permitted subject to policies and regulations of this program.

2. Urban Resort. Water-oriented recreational use and development is permitted subject to policies and regulations of this program.

3. Urban Conservancy. Low intensity water-oriented recreational use and development is permitted subject to policies and regulations of this program and the following criteria:

a. Structures will not result in more than 10 percent building coverage or 4,000 square feet, whichever is greater, and total impervious surface will not exceed 20 percent, or 10,000 square feet, whichever is greater.

b. Alteration of topography shall be limited to the minimum necessary to accommodate allowed development, and generally less than 30 inches.

c. Use of areas or facilities will not result in use patterns that lead to degradation of shoreline ecological functions.

4. Shoreline Residential. Water-oriented recreational use and development is permitted subject to policies and regulations of this program.

5. Rural. Water-oriented recreational use and development is permitted subject to policies and regulations of this program.

6. Resource. Low intensity water-oriented recreational use and development is permitted subject to policies and regulations of this program; provided, that no designated agricultural or forest resource lands of long-term significance are displaced.

7. Conservancy. Low intensity water-oriented recreational use and development is permitted subject to policies and regulations of this program and the following criteria:

a. Structures on sites of one acre or less will not result in more than 10 percent building coverage or 2,000 square feet, whichever is greater, and total impervious surface will not exceed 20 percent or 5,000 square feet, whichever is greater.

b. Structures on sites greater than one acre will not result in more than five percent building coverage or 2,000 square feet, whichever is greater, and total impervious surface will not exceed 10 percent or 10,000 square feet, whichever is greater.

c. Alteration of topography shall be limited to the minimum necessary to accommodate allowed development, and generally less than 30 inches.

d. Use of areas or facilities will not result in use patterns that lead to degradation of shoreline ecological functions.

8. Natural. Low intensity water-oriented recreational use and development consisting of primitive trails or primitive campsites is permitted subject to policies and regulations of this program and the following criteria:

a. Essential minor structures such as trails, stairs, small picnic areas, primitive roads, viewpoints, restrooms, interpretive facilities, or development that will not adversely affect shoreline ecological functions and processes are permitted, subject to policies and regulations of this program.

b. Any necessary landscaping shall use native or similar self-maintaining vegetation.

c. Recreational development requiring extensive structures or substantial alterations to topography or native vegetation is prohibited.

9. Aquatic. Water-oriented recreational use and development is permitted, subject to the use and development regulations of the abutting upland shoreline area designation; provided, that underwater parks may be permitted as a conditional use. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.110 Residential.

Residential development in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC. Residential development as defined in Chapter 23.110 WCC includes multifamily development and the creation of new residential lots through land division.

A. Policies.

1. Single-family residences are designated in Chapter 90.58 RCW as a priority use in those limited instances when authorization is given for alterations of the natural condition of shorelines of the state.

2. New residential development is encouraged to cluster dwelling units together to reduce physical and visual impacts on shorelines and to reduce utility and road costs. Planned unit developments that include common open space and recreation facilities, or a variety of dwelling sizes and types, are encouraged at suitable locations as a preferable alternative to extensive single-lot subdivisions on shorelines. Planned unit developments (Chapter 20.85 WCC) may also include a limited number of neighborhood commercial business uses where consistent with the applicable zoning regulations.

3. Allowable density of new residential development should comply with applicable comprehensive plan goals and policies, zoning restrictions, and shoreline area designation standards. The density per acre of development should be appropriate to local natural and cultural features.

4. Structures or development for uses accessory to residential use should preserve shoreline open space, be visually and physically compatible with adjacent cultural and shoreline features, be reasonable in size and purpose, and result in no net loss of shoreline ecological functions and processes.

5. Buildings greater than 35 feet above average grade level that will obstruct the views of a substantial number of residences on areas adjoining such shorelines are limited by the Act (RCW 90.58.320) to those cases where this program does not prohibit such development and then only when overriding considerations of the public interest will be served. This program provides opportunities for buildings greater than 35 feet in height in limited areas where consistent with development objectives and the goals and polices of this program.

6. New residential development should be planned and built in accordance with the policies and regulations in WCC 23.90.030 and to minimize the need for shoreline stabilization and flood hazard reduction measures.

7. Measures to conserve native vegetation along shorelines should be required for all residential development. Vegetation conservation may include avoidance or minimization of clearing or grading, restoration of areas of native vegetation, and/or control of invasive or nonnative vegetation.

8. Whenever possible, nonregulatory methods to protect, enhance, and restore shoreline ecological functions and other shoreline resources should be encouraged for residential development. Such methods may include resource management planning, low impact development techniques, voluntary protection and enhancement projects, education, or incentive programs.

9. New multiunit residential development, including subdivision of land for more than four parcels, should provide substantial shore space for development residents and the public, unless public access is infeasible due to incompatible uses, safety, impacts to shoreline ecology or legal limitations.

10. Development should provide open space corridors between structures, and along site boundaries, so as to provide space for outdoor recreation, preserve views, and minimize use conflicts.

11. Recreation-oriented residential development in the shoreline should be located only where substantial recreation opportunities are provided on site, and where nearby property owners and other appropriate uses will not be adversely affected.

B. Regulations.

1. Location and Design.

a. New residential development may not be approved in cases when it can be reasonably foreseeable that the development or use would require structural flood hazard reduction measures within a channel migration zone or floodway during the life of the development or use.

b. New residential development shall assure that the development will not require shoreline stabilization. Prior to approval, geotechnical analysis of the site and shoreline characteristics shall demonstrate that shoreline stabilization is unlikely to be necessary; setbacks from steep slopes, bluffs, landslide hazard areas, seismic hazard areas, riparian and marine shoreline erosion areas shall be sufficient to protect structures during the life of the structure (100 years); and impacts to adjacent, downslope or down-current properties are not likely to occur. The greater setback resulting from this regulation or WCC 23.90.130 shall apply.

c. All new subdivisions shall provide for vegetation conservation to mitigate cumulative impacts of intensification of use within or adjacent to the shoreline that shall include compliance with vegetation conservation requirements of WCC 23.90.060, together with replanting and control of invasive species within setbacks and open space to assure establishment and continuation of a vegetation community characteristic of a native climax community.

d. Clustering and low impact development techniques may be required where appropriate to minimize physical and visual impacts on shorelines in accordance with policies and regulations of WCC 23.90.090.

e. Residential structures, accessory uses and related facilities shall be designed and located so as to minimize view obstructions to and from shorelines and water bodies.

f. New over-water residential structures, including floating homes, are prohibited.

g. As mandated by the Act (RCW 90.58.320), no shoreline permit may be issued for any new or expanded building or structure of more than 35 feet above average grade level on shorelines that will obstruct the view of a substantial number of residences on areas adjoining such shorelines, except where this program does not prohibit such development and only when overriding considerations of the public interest will be served.

h. Multiunit residential developments that exceed 35 feet in height may be permitted as a conditional use in resort communities designated urban resort, subject to the requirements of WCC 23.90.130(B)(5).

i. Due to the potential for adverse impact upon adjacent uses and the community from such high-rise and multiunit buildings that exceed 35 feet in height, the county must find proposals for such buildings to be consistent with this program and the Act, particularly as related to RCW 90.58.320, and the following factors:

i. Open space areas and setbacks shall be required along shorelines and between buildings wherever feasible. These areas should be large enough so that local views are not extensively blocked, and building residents have privacy and ample space for outdoor recreation and circulation. The amount of open space shall increase proportionately as density and/or height increase. In general, a view corridor must be maintained across 30 percent of the average parcel width with additional width provided for the percentage increase above 35 feet to a maximum of 50 percent of the lot width. The increased area within a view corridor due to increased height must be devoted to landscaping or other open space.

ii. Urban services, including sanitary sewers, public water supply, fire protection, stormwater drainage, and police protection shall be provided at adequate levels to protect the public health, safety and welfare.

iii. Circulation, parking areas, and outdoor storage or loading areas shall be adequate in size and designed so that the public safety and local aesthetic values are not diminished. Such areas shall be screened where appropriate from open space areas by landscaping, fences or other similar structures, or grade separation.

iv. Recreational needs of building residents shall be provided through on-site recreation facilities and access to shorelines. The variety and number of on-site recreation facilities should increase proportionately as density increases. Where appropriate, public access should be provided and integrated with the development.

j. Minimum required setbacks from shorelines and side property lines, maximum height limits and open space requirements are contained in WCC 23.90.130, Shoreline bulk provisions – Buffers, setbacks, height, open space and impervious surface coverage.

k. New residential lots created through land division in the shoreline shall only be permitted when the following standards are met:

i. Land division may not be approved in cases when it can be reasonably foreseeable that the development or use would require structural flood hazard reduction measures within a channel migration zone or floodway during the life of the development or use.

ii. New land division shall assure that the lots created will not require shoreline stabilization in order for reasonable development to occur. New land division that would require shoreline stabilization is prohibited.

iii. New or expanded subdivisions and all multiunit residential developments shall provide a community recreation and/or open space area for the benefit of all residents or property owners in the development; provided, that such provisions shall not apply to lot line adjustment, lot consolidation, and subdivision of land into four or fewer lots.

iv. New or amended subdivisions, except those for lot line adjustment and lot consolidation purposes, shall provide public access as provided for in WCC 23.90.080 and this section.

v. All new subdivisions shall record a prohibition on new private docks on the face of the plat. An area for shared moorage may be approved if it meets all requirements for shared moorage in WCC 23.100.090, including demonstration that public and private marinas and other boating facilities are not sufficient to meet the moorage needs of the subdivision.

vi. Subdividing tidelands for sale or lease in connection with individual building lots is prohibited.

vii. Substandard shoreline lots unsuitable for development of a primary permitted use under the Official Zoning Ordinance (WCC Title 20) and this program shall not be subdivided.

l. New multiunit development, including subdivision of land for more than four parcels, shall incorporate public access to publicly owned shorelines or public water bodies as provided for in WCC 23.90.080 unless the site is designated in a shoreline public access plan for a greater component of public access or public access is demonstrated to be infeasible or inappropriate.

m. The amount and configuration of public access shall depend on the proposed use(s) and the following criteria:

i. Subdivisions within the shoreline that have views of water areas shall provide a public pedestrian viewing area.

ii. Subdivisions adjacent to public waterways and marine waters shall provide access to a point that abuts the water that will provide visual access and shall provide physical access to public waterways, public marine waters, and public tidelands that are physically accessible at low tide or low water.

iii. Subdivisions subject to requirements for dedication of land to provide open space or mitigate recreation demands of the development shall dedicate such land on or adjacent to public waterways or marine shorelines, as applicable, unless the ecological sensitivity of such land precludes public access. Portions of the area dedicated may be fenced or otherwise restricted to limit public access to ecologically sensitive areas.

2. Accessory Uses.

a. Accessory development common to residences includes, but is not limited to, recreational moorage (mooring buoys, docks and floats), garages and shops, parking areas, water craft storage, shoreline stabilization, fences, cabanas, tennis courts, swimming pools, saunas, antennas, decks, walkways and landscaping.

b. Shoreline permits shall be required for accessory development that does not meet the intent and definition of an appurtenance as defined in WCC 23.110.010(16).

c. Such development shall not be located in required shoreline setbacks where feasible and where a shoreline location is not necessary, and shall be prohibited over the water unless clearly water-dependent such as moorage (mooring buoys, docks and floats) for recreational or personal use.

d. For projects involving two or more dwelling units, only shared moorage consisting of mooring buoys, or shared moorage and/or floats, is permitted. Individual private docks are prohibited. Shared moorage may be approved if it meets all requirements in WCC 23.100.090.

e. Private recreational docks and floats for individual lots are permitted in existing subdivisions which were approved on or before January 28, 1993, only where shared moorage has not already been developed and subject to the policies and regulations in WCC 23.100.090.

C. Shoreline Area Regulations.

1. Urban. Residential development is permitted subject to policies and regulations of this program.

2. Urban Resort. Residential development is permitted subject to policies and regulations of this program.

3. Urban Conservancy. Single-family and duplex development is permitted subject to policies and regulations of this program. Subdivision of property shall not be allowed in a configuration that will require significant vegetation removal or shoreline modification or result in a net loss of shoreline ecological functions and processes at the time of development of the subdivision and/or use of each new parcel. All other residential development may be permitted as a conditional use.

4. Shoreline Residential. Residential development is permitted subject to policies and regulations of this program.

5. Rural. Residential development is permitted subject to policies and regulations of this program.

6. Resource. Residential development limited to farm-related residences or one residence and one accessory dwelling unit is permitted per existing parcel where there is no feasible location outside of the shoreline.

7. Conservancy. Single-family and duplex development is permitted subject to policies and regulations of this program. Subdivision of property shall not be allowed in a configuration that will require significant vegetation removal or shoreline modification or result in a net loss of shoreline ecological functions and processes at the time of development of the subdivision and/or use of each new parcel. All other residential development may be permitted as a conditional use.

8. Natural. Residential development is prohibited, except that one single-family residence per existing lot of record may be permitted as a conditional use where there is no feasible location outside of the shoreline.

9. Aquatic. Residential development is prohibited. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.120 Restoration and enhancement.

Restoration in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC.

A. Policies.

1. This program recognizes the importance of restoration of shoreline ecological functions and processes and encourages cooperative restoration efforts and programs between local, state, and federal public agencies, tribes, nonprofit organizations, and landowners to address shorelines with impaired ecological functions and/or processes.

2. Restoration actions should restore shoreline ecological functions and processes as well as shoreline features and should be targeted towards meeting the needs of sensitive and/or locally important plant, fish and wildlife species as well as the biological recovery goals for early Chinook and bull trout populations, and other salmonid species and populations.

3. Restoration should be integrated with other parallel natural resource management efforts such as the WRIA 1 Salmonid Recovery Plan and the WRIA 1 Watershed Management Plan.

4. Priority should be given to restoration actions that:

a. Create dynamic and sustainable ecosystems.

b. Restore connectivity between stream/river channels, floodplains and hyporheic zones.

c. Restore natural channel-forming geomorphologic processes.

d. Mitigate peak flows and associated impacts caused by high stormwater runoff volume.

e. Reduce sediment input to streams and rivers and associated impacts.

f. Improve water quality.

g. Restore native vegetation and natural hydrologic functions of degraded and former wetlands.

h. Replant native vegetation in riparian areas to restore functions.

i. Restore nearshore ecosystem processes, such as sediment transport and delivery and tidal currents that create and sustain habitat.

j. Restore pocket estuaries that support salmon life histories, including feeding and growth, refuge, osmoregulation, and migration.

k. Address contamination along industrial shoreline regions.

B. Regulations. Restoration shall be carried out in accordance with an approved shoreline restoration plan, County Resolution 2007-011, and in accordance with the policies and regulations of this program.

C. Shoreline Area Regulations.

1. Urban. Restoration activities are permitted subject to policies and regulations of this program.

2. Urban Resort. Restoration activities are permitted subject to policies and regulations of this program.

3. Urban Conservancy. Restoration activities are permitted subject to policies and regulations of this program.

4. Shoreline Residential. Restoration activities are permitted subject to policies and regulations of this program.

5. Rural. Restoration activities are permitted subject to policies and regulations of this program.

6. Resource. Restoration activities are permitted subject to policies and regulations of this program.

7. Conservancy. Restoration activities are permitted subject to policies and regulations of this program.

8. Natural. Restoration activities are permitted subject to policies and regulations of this program.

9. Aquatic. Restoration activities are permitted subject to policies and regulations of this program. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.130 Shoreline stabilization.

Shore stabilization in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC.

A. Policies.

1. Alternatives to structures for shore protection should be used whenever possible. Such alternatives may include no action (allow the shoreline to retreat naturally), increased building setbacks, building relocation, drainage controls, and bioengineering, including vegetative stabilization, and beach nourishment.

2. New or expanded structural shore stabilization for new primary structures should be avoided. Instead, structures should be located and designed to avoid the need for future shoreline stabilization where feasible. Land subdivisions should be designed to assure that future development of the created lots will not require structural shore stabilization for reasonable development to occur.

3. New or expanded structural shore stabilization should only be permitted where demonstrated to be necessary to protect an existing primary structure that is in danger of loss or substantial damage, and where mitigation of impacts would not cause a net loss of shoreline ecological functions and processes.

4. New or expanded structural shore stabilization for enhancement, restoration, or hazardous substance remediation projects should only be allowed when nonstructural measures, vegetation planting, or on-site drainage improvements would be insufficient to achieve enhancement, restoration or remediation objectives.

5. Shore stabilization on streams should be located and designed to fit the physical character and hydraulic energy potential of a specific shoreline reach, which may differ substantially from adjacent reaches.

6. Shore stabilization should not be permitted to unnecessarily interfere with public access to public shorelines, nor with other appropriate shoreline uses including, but not limited to, navigation, seafood harvest, or private recreation.

7. Provisions for multiple use, restoration, and/or public shore access should be incorporated into the location, design and maintenance of shore stabilization for public or quasi-public developments whenever safely compatible with the primary purpose. Shore stabilization on publicly owned shorelines should not be allowed to decrease long-term public use of the shoreline.

8. Shore stabilization should be developed in a coordinated manner among affected property owners and public agencies for a whole drift sector (net shore-drift cell) or reach where feasible, particularly those that cross jurisdictional boundaries, to address ecological and geohydraulic processes, sediment conveyance and beach management issues. Where beach erosion threatens existing development, a comprehensive program for shoreline management should be established.

9. In addition to conformance with the regulations in this section, nonregulatory methods to protect, enhance, and restore shoreline ecological functions and other shoreline resources should be encouraged for shore stabilization. Nonregulatory methods may include public facility and resource planning, technical assistance, education, voluntary enhancement and restoration projects, or other incentive programs.

10. Shore stabilization should be located, designed, and maintained to protect and maintain shoreline ecological functions, ongoing shore processes, and the integrity of shore features. Ongoing stream, lake or marine processes and the probable effects of proposed shore stabilization on other properties and shore features should be considered. Shore stabilization should not be developed for the purpose of filling shorelines.

11. Failing, harmful, unnecessary, or ineffective structures should be removed, and shoreline ecological functions and processes should be restored using nonstructural methods or less harmful long-term stabilization measures.

12. Structural shoreline stabilization measures should only be used when more natural, flexible, nonstructural methods such as vegetative stabilization, beach nourishment and bioengineering have been determined infeasible. Alternatives for shoreline stabilization should be based on the following hierarchy of preference:

a. No action (allow the shoreline to retreat naturally), increase building setbacks, and relocate structures.

b. Flexible defense works constructed of natural materials including soft shore protection, bioengineering, including beach nourishment, protective berms, or vegetative stabilization.

c. Rigid works constructed of artificial materials such as riprap or concrete.

Materials used for construction of shoreline stabilization should be selected for long-term durability, ease of maintenance, compatibility with local shore features, including aesthetic values and flexibility for future uses.

13. Larger works such as jetties, breakwaters, weirs or groin systems should be permitted only for water-dependent uses when the benefits to the region outweigh resource losses from such works, and only where mitigated to provide no net loss of shoreline ecological functions and processes.

14. Alternative structures, including floating, portable or submerged breakwater structures, or several smaller discontinuous structures, should be considered where physical conditions make such alternatives with less impact feasible.

B. Regulations.

1. Allowed Use.

a. New or expanded structural shore stabilization for existing primary structures, including roads, railroads, public facilities, etc., is prohibited unless there is conclusive evidence documented by a geotechnical analysis that there is a significant possibility that the structure will be damaged within three years as a result of shoreline erosion caused by stream processes, tidal action or waves, and only when significant adverse impacts are mitigated to ensure no net loss of shoreline ecological functions and/or processes. Where a geotechnical analysis confirms a need to prevent potential damage to a primary structure, but the need is not as immediate as three years, the analysis may still be used to justify more immediate authorization for shoreline stabilization using bioengineering approaches.

b. New shore stabilization for new development is prohibited unless it can be demonstrated that the proposed use cannot be developed without shore protection, and a geotechnical analysis documents that alternative solutions are not feasible or do not provide sufficient protection. The need for shore stabilization shall be considered in the determination of whether to approve new water-dependent uses. Proposed designs for new or expanded shore stabilization shall be designed in accordance with applicable Department of Ecology and Department of Fish and Wildlife guidelines and certified by a qualified professional.

c. Shoreline stabilization is prohibited for new non-water-oriented development; provided, that such stabilization may be approved as a conditional use where a geotechnical analysis demonstrates that shore stabilization is necessary to facilitate reasonable use of a property and documents that alternative solutions, including location outside of the shoreline, are not feasible or do not provide sufficient protection, and where ongoing monitoring, maintenance and mitigation for impacts to shoreline ecological functions and processes are provided.

d. Where shore stabilization is allowed, it shall consist of “soft,” flexible, and/or natural materials or other bioengineered approaches unless a geotechnical analysis demonstrates that such measures are infeasible.

e. Replacement of an existing shore stabilization structure with a similar structure is permitted if there is a demonstrated need to protect primary uses, structures or public facilities including roads, bridges, railways, and utility systems from erosion caused by stream undercutting or tidal action; provided, that the existing shore stabilization structure is removed from the shoreline as part of the replacement activity. A geotechnical analysis may be required to document that alternative solutions such as those listed in subsections (A)(12)(a) and (b) of this section are not feasible or do not provide sufficient protection. Existing shoreline stabilization structures that are being replaced shall be removed from the shoreline unless removal of such structures will cause significant damage to shoreline ecological functions or processes. Replacement walls, bulkheads or revetments shall not encroach waterward of the ordinary high water mark or the existing shore defense structure unless the primary use being protected is a residence that was occupied prior to January 1, 1992, and there are overriding safety or environmental concerns. In such cases, the replacement structure shall abut the existing shoreline stabilization structure.

f. Groins are prohibited except as a component of a professionally designed community or public beach management program that encompasses an entire drift sector or reach for which alternatives are infeasible, or where installed to protect or restore shoreline ecological functions or processes.

g. Jetties and breakwaters are prohibited except as an integral component of a professionally designed harbor, marina, or port. Where permitted, floating, portable or submerged breakwater structures, or smaller discontinuous structures, are preferred where physical conditions make such alternatives with less impact feasible. Defense works that substantially reduce or block littoral drift and cause erosion of downdrift shores, shall not be allowed unless an adequate long-term professionally engineered beach nourishment program is established and maintained.

h. New or expanded shore stabilization may be permitted to protect projects with the primary purpose of enhancing or restoring ecological functions, or projects for hazardous substance remediation pursuant to Chapter 70.105D RCW when nonstructural approaches, such as vegetation planting, and/or on-site drainage improvements are not feasible or do not provide sufficient protection.

i. Proposed designs for new or expanded shore stabilization shall be designed and certified by a qualified professional.

j. No motor vehicles, appliances, other similar structures nor parts thereof, nor structure demolition debris, nor any other solid waste shall be used for shore stabilization.

k. The size of shore stabilization measures shall be limited to the minimum necessary to provide protection for the primary structure or use it is intended to protect.

2. Marine Shorelines and Lakes. In those limited cases where a proposed bulkhead meets the criteria in this section for a shoreline permit or the exemption criteria under WCC 23.60.022, and to assure that such bulkheads will be consistent with the provisions of this program, the administrator shall review the proposed design as it relates to local physical conditions and issue written findings that the location and design meet all criteria of this program, subject to the following:

a. Bulkheads and other similar hard structures are prohibited on marine or lake accretion shoreforms, except as a conditional use where exposure to storm waves and driftwood battering seriously threaten other similar existing structures and no feasible alternatives exist. Such bulkheads shall be set back a minimum of 20 feet landward from the OHWM.

b. Bulkheads and other similar hard structures are prohibited on marine feeder bluff and estuarine shores, and on wetland and rock shores; provided, that such structures may be permitted as a conditional use where valuable primary structure(s) are at risk and no feasible alternatives exist and where ongoing monitoring, maintenance and mitigation for impacts to shoreline ecological functions and processes are provided.

c. Bulkheads and other similar hard structures shall be located within one foot of the bank toe, and shall generally parallel the shoreline.

d. Bulkheads and other similar hard structures shall be designed and constructed with gravel backfill and weep holes so that natural downward movement of surface or ground water may continue without ponding or saturation.

e. Bulkheads exposed to significant wave action shall be designed to dissipate wave energy and scouring.

f. Walls, revetments or other similar hard structures within 10 feet of the OHWM shall be considered bulkheads; provided, that on accretion shoreforms walls or revetments or other similar hard structures within 20 feet of the OHWM shall be considered bulkheads.

3. Shore Stabilization on Streams. In those limited cases where a proposed bulkhead, revetment or other similar structure meets the criteria in this section for a shoreline permit or an exemption under WCC 23.60.022, and to assure that such revetment or similar structure will be consistent with this program, the administrator shall review the proposed design for consistency with state guidelines for stream bank protection as it relates to local physical conditions and issue written findings that the location and design meet all criteria of this program, subject to the following:

a. Revetments or similar hard structures are prohibited on estuarine shores, in wetlands, on point and channel bars, and in salmon and trout spawning areas, except for the purpose of fish or wildlife habitat enhancement or restoration.

b. Revetments or similar hard structures shall be placed landward of associated wetlands unless it can be demonstrated that placement waterward of such features would not adversely affect ecological functions.

c. A geotechnical analysis of stream geomorphology both upstream and downstream shall be performed to assess the physical character and hydraulic energy potential of the specific stream reach and adjacent reaches upstream or down, and assure that the physical integrity of the stream corridor is maintained, that stream processes are not adversely affected, and that the revetment will not cause significant damage to other properties or valuable shoreline resources. In addition:

i. Revetments or similar structures shall not be developed on the low, innermost channel banks in a stream except to protect public works, railways and existing commercial farmsteads.

ii. Where revetments or similar structures are proposed, analysis shall assure that localized shore stabilization will be effective, as compared to more extensive cooperative measures to address reach scale processes. Revetments shall be set back at convex (inside) bends to allow streams to maintain point bars and associated aquatic habitat through normal accretion. Where revetments or similar structures have already cut off point bars from the stream, consideration should be given to their relocation.

iii. Revetments shall be designed in accordance with WDFW streambank protection guidelines.

d. Cut-and-fill slopes and backfilled areas shall be stabilized with brush matting and buffer strips and revegetated with native grasses, shrubs and/or trees so that there is no net loss of ecological functions.

e. All forms of shore stabilization shall be constructed and maintained in a manner that does not degrade the quality of affected waters. The county may require reasonable conditions to achieve this objective such as setbacks, buffers, or storage basins.

f. Shore stabilization shall allow for normal ground water movement and surface runoff.

g. Selection of materials for projects shall be in conformance with applicable engineering standards.

4. Viewpoints and Public Access.

a. Where appropriate, larger public or private shore stabilization projects shall be required to maintain, replace or enhance existing public access opportunities by incorporating physical or visual access areas and/or facilities into the design of the project.

b. Publicly financed or subsidized shoreline stabilization shall not restrict appropriate public access to the shoreline and shall provide new public access except where such access is determined to be infeasible because of incompatible uses, safety, security, or harm to shoreline ecological functions.

5. Application Materials. Geotechnical reports required pursuant to this section shall address the need for shoreline stabilization and shall include the following:

a. A scaled site plan showing:

i. The location of existing and proposed shore stabilization, structures, fill, and vegetation, with dimensions indicating distances to the OHWM; and

ii. Existing site topography, preferably with two-foot contours.

b. A description of the processes affecting the site, and surrounding areas that influence or could be influenced by the site, including areas in which stream processes, lake or marine geomorphic processes affect the site, including, but not limited to:

i. Soil erosion, deposition, or accretion;

ii. Evidence of past or potential channel migration;

iii. Evidence of past or potential erosion due to tidal action and/or waves;

iv. Littoral drift; and

v. An estimate of shoreline erosion rates.

c. A description and analysis of the urgency and risk associated with the specific site characteristics.

d. A discussion and analysis demonstrating conformance with the standards enumerated in Chapter 16.16 WCC.

C. Shoreline Area Regulations.

1. Urban.

a. Bulkheads, revetments, and bioengineering approaches are permitted subject to policies and regulations of this program.

b. Groins, breakwaters and jetties may be permitted as a conditional use.

c. Gabions are prohibited.

2. Urban Resort.

a. Bulkheads, revetments, and bioengineering approaches are permitted subject to policies and regulations of this program.

b. Groins, breakwaters and jetties may be permitted as a conditional use.

c. Gabions are prohibited.

3. Urban Conservancy.

a. Bulkheads, revetments, and bioengineering approaches are permitted subject to policies and regulations of this program.

b. Breakwaters and jetties may be permitted as a conditional use if accessory to a water-dependent use and littoral sediment transport is not significantly disrupted.

c. Groins and gabions are prohibited.

4. Shoreline Residential.

a. Bulkheads, revetments, and bioengineering approaches are permitted subject to policies and regulations of this program.

b. Groins, breakwaters and jetties may be permitted as a conditional use.

c. Gabions are prohibited.

5. Rural.

a. Bulkheads, revetments, and bioengineering approaches are permitted subject to policies and regulations of this program.

b. Groins, breakwaters and jetties may be permitted as a conditional use.

c. Gabions are prohibited.

6. Resource.

a. Bulkheads, revetments, and bioengineering approaches are permitted subject to policies and regulations of this program.

b. Groins, breakwaters and jetties may be permitted as a conditional use.

c. Gabions are prohibited.

7. Conservancy.

a. Bulkheads, revetments, and bioengineering approaches are permitted subject to policies and regulations of this program.

b. Breakwaters and jetties may be permitted as a conditional use if accessory to a water-dependent use and littoral sediment transport is not significantly disrupted.

c. Groins and gabions are prohibited.

8. Natural. Shoreline stabilization is prohibited; except that bioengineering approaches may be permitted as a conditional use when necessary to restore an eroding accretion shoreform or to retard erosion elsewhere.

9. Aquatic.

a. Bioengineering approaches are permitted on tidelands and shorelands when necessary to restore an eroding accretion shoreform or to retard erosion elsewhere subject to policies and regulations of this program.

b. Groins, breakwaters, and jetties may be permitted as a conditional use if such development is permitted in the abutting upland shoreline area designation.

c. Bulkheads or revetments are prohibited except for an approved water-dependent development subject to policies and regulations of this program.

d. Gabions are prohibited. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.140 Signs.

Signs in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC.

A. Policies.

1. Whatcom County recognizes the constitutional right for property owners to communicate using signs on their property. These policies are intended to ensure that signage within shoreline areas is consistent with the purpose and intent of the Act and this program by addressing impacts to ecological functions, public safety and visual aesthetics.

2. Signs should be located, designed and maintained to be visually compatible with local shoreline scenery as seen from both land and water, especially on shorelines of statewide significance.

3. Sign location and design should not significantly impair shoreline views.

4. As a preferable alternative to continued proliferation of single-purpose signs, communities, districts, and/or multiuse or multitenant commercial developments are encouraged to erect single, common use gateway signs to identify and give directions to local premises and public facilities.

5. Signs of a commercial or industrial nature should be limited to those areas or premises to which the sign messages refer.

6. Billboards and other off-premises signs are not water-dependent, reduce public enjoyment of or access to shorelines, and often lower values of nearby properties. Such signs should not be located on shorelines except for approved community gateway or directional signs.

7. Signs near scenic vistas and view points should be restricted in number, location, and height so that enjoyment of these limited and scarce areas is not impaired.

8. Freestanding signs should be located to avoid blocking scenic views and be located on the landward side of public transportation routes which generally parallel the shoreline.

9. To minimize negative visual impacts and obstructions to shoreline access and use, low profile, on-premises wall signs are strongly preferred over freestanding signs or off-premises wall signs.

10. Signs should be designed mainly to identify the premises and nature of enterprise without unduly distracting uninterested passersby. Moving or flashing signs should be prohibited on shorelines.

B. Regulations.

1. Unless otherwise prohibited by zoning regulations or this program, shoreline developments are permitted to maintain a total of three on-premises signs. Only one may be a freestanding, roof, or projecting sign; provided, that if this sign is double-faced, then only one other wall sign is permitted. This provision does not apply to private informational signs posted on private property by the owner for reasonable purposes such as address, home occupation signs, No Trespass, and temporary signs such as For Sale, Rent and campaign signs; provided, no sign exceeds four square feet in area. All signs proposed for a development requiring a substantial development permit shall be designated on application and approval documents.

2. Multiuse or multitenant commercial developments shall erect no more than one sign at each street gateway.

3. Communities, neighborhoods and districts shall erect no more than one sign at each street gateway identifying the name of the community or neighborhood and give directions to local premises and public facilities.

4. Exception. Signs required by law and signs posted for legitimate safety purposes shall not be subject to limitations with respect to the number, location, and/or size; provided, that they are the minimum necessary to achieve the intended purpose. Such signs include but are not limited to official or legal notices issued and posted by any public agency or court, or traffic directional or warning signs.

5. All building signs shall be integrated with building design. Roof signs shall be designed to occupy a design feature of the roof such as a dormer or gable and may not be placed above the peak of a pitched roof or the eve of a flat roof. Projecting signs shall be incorporated in a marquee, canopy, or other architectural feature.

6. Applications for substantial development permits shall include a conceptual sign package addressing the size and location of all signs and shall include design standards to assure that all signs in a development are consistent in terms of material, color, height, size, and illumination.

7. Sign permits not associated with a substantial development permit shall demonstrate compliance with all provisions of this code and shall be similar to and compatible with other signs in a development under a single ownership or approved as an integrated development.

8. Sign illumination shall be indirect, incorporating exterior lighting shining on the sign, or shadow illumination behind nontransparent materials. Internally illuminated signs are prohibited.

9. Distracting Devices. Any signs or other devices which flash, blink, flutter, rotate, oscillate, or otherwise purposely fluctuate in lighting or position, in order to attract attention through their distractive character, are prohibited on shorelines; provided, that searchlights, pennants, banners and other devices of seasonal, holiday, or special event character may be utilized for up to 90 days in one year.

10. Freestanding signs other than those private informational signs described in subsection (B)(1) of this section are prohibited between a public right-of-way and the water where the water body is visible from the public right-of-way.

11. To protect views from the water or publicly accessible beaches or lands adjacent to the water, freestanding signs other than those private informational signs described in subsection (B)(1) of this section are prohibited between buildings and OHWM, and waterward of a line drawn from the nearest point of the building parallel to the shoreline; provided, that where a public road or path separates said building from the OHWM, up to one freestanding sign not to exceed 12 square feet is permitted between the road or path and said building.

12. Signs may not be located in critical areas or buffers as established by Chapter 16.16 WCC except as otherwise provided for in Chapter 16.16 WCC; provided, that pursuant to subsections (B)(1) and (4) of this section, signs may be permitted within critical area buffers where the placement of such signs does not require the removal of vegetation.

13. Minimum required setbacks for permanent freestanding signs are:

a. From the ordinary high water mark where not subject to critical areas or buffers: 50 feet.

b. From side property lines: 10 feet.

c. Maximum height: 15 feet.

14. Building-mounted signs are subject to setbacks applicable to buildings. Height of wall signs may be measured from the floor elevation of the uppermost finished story; provided, the sign does not project above the roof of the building. Roof signs shall not extend higher than the maximum height of the primary building.

15. Sign Area Limit.

a. The maximum area of individual sign faces shall be consistent with applicable zoning standards; provided, that the combined area of sign faces per premises shall not exceed 60 square feet with a maximum face area of freestanding signs not to exceed 12 square feet in all shoreline designations where signs are permitted, except on aquatic, urban conservancy, and conservancy shorelines and shorelines of statewide significance where the total sign area shall not exceed 24 square feet per premises and freestanding signs shall not exceed 4 square feet.

b. The size of individual building or tenant signs shall be governed in accordance with the following table:

Relevant building wall vertical surface area or facade area for a specific tenant (1)

Maximum sign surface area for that facade

Maximum sign area (2)

Below 100 sq. ft.

4 sq. ft.

4 sq. ft.

100 – 199 sq. ft.

4 sq. ft. + 4% of the facade area over 100 sq. ft.

8 sq. ft.

200 – 499 sq. ft.

10 sq. ft. + 3% of the facade area over 200 sq. ft.

20 sq. ft.

500 sq. ft. or greater

26 sq. ft. + 2% of the facade area over 500 sq. ft. up to a maximum of 40 sq. ft.

40 sq. ft.

(1) Includes only vertical building walls, excludes all roof area above the eaves and any dormers or other vertical areas above roof eaves. For building tenants, includes the area of the projection of the interior partitions onto the exterior wall.

(2) On aquatic and conservancy shorelines and shorelines of statewide significance, no sign visible from a public right-of-way, the water, or publicly accessible beaches or lands adjacent to the water, shall exceed 24 square feet, and freestanding signs shall not exceed four square feet.

16. Freestanding signs shall be entirely self-supporting and structurally sound without permanent use of guy wires or cables.

17. Signs shall comply with the standards in this section at any time a change in use or modification of structures requiring a substantial development permit is approved. Abandoned or derelict signs should either be properly restored or completely removed within a reasonable period of time by the sign owner or property owner as necessary.

C. Shoreline Area Regulations.

1. Urban. Sign development is permitted subject to policies and regulations of this program.

2. Urban Resort. Sign development is permitted subject to policies and regulations of this program.

3. Shoreline Residential. Sign development is permitted subject to policies and regulations of this program.

4. Urban Conservancy. Sign development is permitted subject to policies and regulations of this program.

5. Rural. Sign development is permitted subject to policies and regulations of this program.

6. Resource. Sign development is permitted subject to policies and regulations of this program.

7. Conservancy. Sign development is permitted subject to policies and regulations of this program.

8. Natural. Sign development is prohibited, except for trail marking, hazard warnings, or interpretive scientific or educational purposes and personal signs provided for in subsection (B)(1) of this section. Such permitted signs shall be limited in size and number to those required to affect their purpose.

9. Aquatic. Only wall signs and low profile freestanding signs under 30 inches in height for water-dependent uses are permitted, except as provided for in subsections (B)(1) and (4) of this section. No one premises may maintain more than two signs in an aquatic shoreline area. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.150 Transportation.

Roads, railways, and other transportation developments in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC. These policies and regulations apply to both public transportation projects and private transportation projects.

A. Policies.

1. New public or private transportation facilities should be located inland from the land/water interface, preferably out of the shoreline, unless:

a. Perpendicular water crossings are required for access to authorized uses consistent with this program; or

b. Facilities are primarily oriented to pedestrian and nonmotorized use and provide an opportunity for a substantial number of people to enjoy shoreline areas, and are consistent with policies and regulations for ecological protection in WCC 23.90.030.

2. Transportation facilities should be located and designed to avoid public recreation and public access areas and significant natural, historic, archaeological or cultural sites.

3. Parking is not a preferred use in shorelines and should only be allowed to support authorized uses where no feasible alternatives exist.

4. New or expanded public transportation facility route selection and development should be coordinated with related local and state government land use and circulation planning.

5. Transportation system route planning, acquisition, and design in the shoreline should provide space wherever possible for compatible multiple uses such as utility lines, pedestrian shore access or view points, or recreational trails.

6. Transportation system plans and transportation projects within shorelines should provide safe trail space for nonmotorized traffic such as pedestrians, bicyclists, or equestrians. Space for such uses should be required along roads on shorelines, where appropriate, and should be considered when rights-of-way are being vacated or abandoned.

7. Public access should be provided to shorelines where safe and compatible with the primary and adjacent use, or should be replaced where transportation development substantially impairs lawful public access. Viewpoints, parking, trails and similar improvements should be considered for transportation system projects in shoreline areas, especially where a need has been identified.

8. Public transportation routes, particularly arterial highways and railways, should be located, designed, and maintained to permit safe enjoyment of adjacent shore areas and properties by other appropriate uses such as recreation or residences. Vegetative screening or other buffering should be considered.

B. Regulations.

1. Design and Operation.

a. Transportation facilities on shorelines shall be designed to generally follow natural topography, to minimize cuts and/or fills, to avoid cutting off meander bends or point bars, and to avoid adverse impacts to shoreline ecological functions and processes. Wherever such roads or railway embankments cross depressions remaining from remnant channels and oxbow bends, crossings of ample cross-section shall be provided to span the remnant feature.

b. Raised arterial roads or railways shall be built outside the floodway except for necessary crossings. If built in the floodway fringe, such routes should be aligned generally parallel to outside stream bends so they will also act as setback dikes. Any parking areas required along such roads shall be sited at the base of the embankment and at the downstream corner of large accretion beaches, thus requiring no or minimal flood control works or shoreline stabilization. Local access roads in floodplains shall be built at valley floor grade level so that floodwaters are not abnormally obstructed nor diverted. Transportation facilities shall be designed so that no significant loss of floodway capacity or measurable increase in predictable flood levels will result. If transportation facilities are intended to secondarily provide flood control, they shall comply with policies and regulations for flood control works under WCC 23.100.060.

c. If a road is demonstrated to be necessary along an accretion shoreform, the waterward road shoulder shall be set back far enough from the primary berm so that the berm may absorb the high energy of storm tide breakers, as well as prevent road bed erosion and allow optimum recreational use of these scarce shore features.

d. Spans on rivers shall avoid placing structures within the channel migration zone or other dynamic, shifting channel elements such as bends.

e. Parking facilities are not a water-dependent use and shall only be permitted in the shoreline to support an authorized use where it can be demonstrated that there are no feasible alternative locations away from the shoreline. Parking facilities shall be buffered from the water’s edge and less intense adjacent land uses by vegetation, undeveloped space, or structures developed for the authorized primary use.

f. Earth cut slopes and other exposed soils shall be placed, compacted, and planted or otherwise stabilized and protected from surface runoff with native vegetation. Transportation facilities sited close to water, wetlands or other sensitive features shall incorporate the maximum feasible buffer of native vegetation in accordance with critical area regulations in Chapter 16.16 WCC.

g. Bridge supports and abutments shall be designed and spaced so they do not act as walls baffling or blocking flood waters, or interrupting stream channel processes or littoral drift.

h. Bridges or bottomless culverts or other similar structures shall be used in accordance with WDFW guidance to protect shoreline ecological functions and processes. Bridge approaches in floodways shall be constructed on open piling, support piers, or other similar measures to preserve hydraulic processes.

i. Transportation facilities shall be constructed of materials that will not adversely affect water quality or aquatic plants and animals over the long term. Elements within or over water shall be constructed of materials approved by applicable state agencies for use in water for both submerged portions and other components to avoid discharge of pollutants from splash, rain or runoff. Wood or pilings treated with creosote, pentachlorophenol or other similarly toxic materials are prohibited. Preferred materials are concrete and steel.

j. Parking areas shall be developed utilizing low impact development techniques whenever possible including, but not limited to, the use of permeable surfacing materials.

k. Transportation development shall be carried out in a manner that maintains or improves state water quality standards for affected waters.

l. Nonemergency construction and repair work shall be scheduled for that time of year when seasonal conditions (weather, streamflow) permit optimum feasible protection of shoreline ecological functions and processes.

m. Maintenance activity including vegetation control and erosion control shall be carried out consistent with this program. Necessary minor resurfacing of existing roadways and replacement of culverts that improve shoreline ecological functions may be exempt from substantial development permit requirements as provided by WCC 23.60.020.

n. RCW 36.87.130 prohibits the county from vacating any county road that abuts a body of saltwater or freshwater except for port, recreational, educational or industrial purposes. Therefore, development, abandonment, or alteration of undeveloped county road ends within SMP jurisdiction is prohibited unless approved in accordance with this program.

o. Minimum required setbacks from shorelines are contained in WCC 23.90.130, Shoreline bulk provisions – Buffers, setbacks, height, open space and impervious surface coverage.

2. Application Requirements. All applications for new or expanded transportation facilities shall be accompanied by adequate documentation that the proposal meets the policies and regulations of this program, including but not limited to:

a. Documentation that the facility cannot be feasibly located outside of shoreline jurisdiction due to the uses served or the need to connect specific end points. An analysis of alternatives may be required. New or expanded public or private transportation facilities should be located inland from the land/water interface, preferably out of the shoreline.

b. Documentation that the facilities are primarily oriented to pedestrian use and provide an opportunity for a substantial number of people to enjoy shoreline areas.

c. Documentation that the proposed facilities comply with critical area regulations in Chapter 16.16 WCC.

d. Documentation of how the location, design and use achieves no net loss of shoreline ecological functions and incorporate appropriate mitigation in accordance with WCC 23.90.030.

e. Documentation that facilities avoid public recreation areas and significant natural, historic, archaeological or cultural resources, or that no alternative is feasible outside of the shoreline and that all feasible measures to minimize adverse impacts have been incorporated into the proposal.

C. Shoreline Area Regulations.

1. Urban. Transportation facilities are permitted subject to policies and regulations of this program. Transportation facilities not serving a specific approved use, including roads, railways, and parking areas, may be permitted as a conditional use, provided there is no feasible location outside of the shoreline.

2. Urban Resort. Transportation facilities are permitted subject to policies and regulations of this program. Transportation facilities not serving a specific approved use, including roads, railways, and parking areas, may be permitted as a conditional use, provided there is no feasible location outside of the shoreline.

3. Urban Conservancy. Transportation facilities are permitted only for access to approved development, subject to policies and regulations of this program.

4. Shoreline Residential. Transportation facilities are permitted subject to policies and regulations of this program. Transportation facilities not serving a specific approved use, including roads, railways, and parking areas, may be permitted as a conditional use, provided there is no feasible location outside of the shoreline.

5. Rural. Transportation facilities are permitted subject to policies and regulations of this program. Transportation facilities not serving a specific approved use, including roads, railways, and parking areas, may be permitted as a conditional use, provided there is no feasible location outside of the shoreline.

6. Resource. Transportation facilities are permitted subject to policies and regulations of this program. Transportation facilities not serving a specific approved use, including roads, railways, and parking areas, may be permitted as a conditional use, provided there is no feasible location outside of the shoreline.

7. Conservancy. Transportation facilities are permitted only for access to approved development, subject to policies and regulations of this program.

8. Natural. Transportation facilities are prohibited, except to access approved recreational development.

9. Aquatic. Access to water-dependent or water-related uses, such as ferry terminals, is permitted subject to policies and regulations of this program. New or expanded bridge crossings for non-water-dependent or non-water-related uses may be permitted as a conditional use. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.160 Utilities.

Utility development in shoreline areas shall be subject to the policies and regulations of this section and Chapter 23.90 WCC. These policies and regulations apply to both public and private utilities.

A. Policies.

1. New public or private utilities should be located inland from the land/water interface, preferably out of the shoreline jurisdiction, unless:

a. Perpendicular water crossings are unavoidable; or

b. Utilities are required for authorized shoreline uses consistent with this program.

2. Utilities should be located and designed to avoid public recreation and public access areas and significant natural, historic, archaeological or cultural resources.

3. Utilities should be located, designed, constructed, and operated to result in no net loss of shoreline ecological functions and processes with appropriate mitigation as provided in WCC 23.90.030.

4. All utility development should be consistent with and coordinated with all local government and state planning, including comprehensive plans and single purpose plans to meet the needs of future populations in areas planned to accommodate growth. Site planning and rights-of-way for utility development should provide for compatible multiple uses such as shore access, trails, and recreation or other appropriate use whenever possible; utility right-of-way acquisition should also be coordinated with transportation and recreation planning.

5. Utilities should be located in existing rights-of-way and corridors whenever possible.

6. Utilities serving new development should be located underground, wherever possible.

7. Development of pipelines and cables on aquatic lands and tidelands, particularly those running roughly parallel to the shoreline, and development of facilities that may require periodic maintenance which would disrupt shoreline ecological functions should be discouraged except where no other feasible alternative exists. When permitted, provisions shall assure that the facilities do not result in a net loss of shoreline ecological functions or significant impacts to other shoreline resources and values.

B. Regulations.

1. Design and Operation.

a. Water Systems.

i. Components of water systems which are not water-dependent shall be located away from shoreline jurisdiction unless alternative locations, including alternative technology, are demonstrated to be infeasible and it is demonstrated that the facilities do not result in a net loss of shoreline ecological functions and processes or significant adverse impacts to other shoreline resources and values such as parks and recreation facilities, public access and archaeological, historic, and cultural resources, and aesthetic resources.

ii. Private and public intake facilities, and wells on shorelines, should be located where there will be no net loss in ecological functions or adverse impacts upon shoreline resources, values, natural features, or other users.

iii. Desalinization facilities shall be located consistent with critical area regulations and buffers, except for water-dependent components such as water intakes.

b. Sewage Systems.

i. Sewage trunk lines, interceptors, pump stations, treatment plants and other components that are not water-dependent shall be located away from shoreline jurisdiction unless alternative locations, including alternative technology, are demonstrated to be infeasible and it is demonstrated that the facilities do not result in a net loss of shoreline ecological functions and processes or significant impacts to other shoreline resources and values such as parks and recreation facilities, public access and archaeological, historic, and cultural resources, and aesthetic resources.

ii. Outfall pipelines and diffusers are water-dependent, but should be located only where there will be no net loss in shoreline ecological functions and processes or adverse impacts upon shoreline resources and values.

iii. Septic tanks and drainfields are prohibited where public sewer is reasonably available.

c. Solid Waste Facilities.

i. Facilities for processing, storage and disposal of solid waste are not normally water-dependent. Components that are not water-dependent shall not be permitted on shoreline jurisdiction.

ii. Disposal of solid waste on shorelines or in water bodies has potential for severe adverse effects upon ecological processes and functions, property values, public health, natural resources, and local aesthetic values and shall not be permitted.

iii. Temporary storage of solid waste in suitable receptacles is permitted as an accessory use to a primary permitted use, or for litter control.

d. Oil, Gas and Natural Gas Transmission.

i. Oil, gas and natural gas pipelines, except local service lines, shall not be located in shoreline jurisdiction unless alternatives are demonstrated to be infeasible and shall include analysis of alternative routes avoiding aquatic lands and including alternative technology.

ii. Natural gas local service lines shall not be located in shoreline areas unless serving approved shoreline uses. Crossings of shorelines shall not be approved unless alternatives are demonstrated to be infeasible. Application materials shall include an analysis of alternative routes avoiding aquatic lands, including an analysis of alternative technology.

iii. Application for oil, gas and natural gas pipelines shall demonstrate that the facilities do not result in a net loss of shoreline ecological functions and processes or significant impacts to other shoreline resources and values.

iv. Developers and operators of pipelines and related appurtenances for gas and oil shall be required to demonstrate adequate provisions for preventing spills or leaks, as well as established procedures for mitigating damages from spills or other malfunctions and shall demonstrate that periodic maintenance will not disrupt shoreline ecological functions.

e. Electrical Energy and Communication Systems.

i. Energy and communication systems including substations, towers, transmission and distribution lines have critical location requirements, but are not normally water-dependent. Systems components that are not water-dependent shall not be located on shoreline jurisdiction unless alternatives are infeasible. Application materials for such facilities shall include an analysis of alternative routes avoiding aquatic lands, including an analysis of alternative technology.

ii. Underground placement of lines shall be required on shorelines for new or replacement lines that are parallel to the shoreline, and do not cross water or other critical areas defined in Chapter 16.16 WCC; provided, that maintenance of existing aerial lines above 35 kv may be permitted above ground where alternatives are demonstrated to be impractical and/or infeasible. New or replacement lines that cross water or other critical areas defined in Chapter 16.16 WCC may be required to be placed underground depending on impacts on ecological functions and processes and visual impacts; provided, that maintenance of existing aerial lines above 35 kv may be permitted above ground where alternatives are demonstrated to be impractical and/or infeasible. Poles or supports treated with creosote or other wood preservatives that may be mobile in water shall not be used along shorelines or associated wetlands. Where road rights-of-way or easements are within 150 feet and also are parallel to the shoreline for more than 500 feet, no new overhead wiring shall be installed between the road and OHWM.

iii. Utilities for new development within the shoreline shall be installed underground.

f. Fire Protection Facilities. Storage and handling facilities for water-borne fire fighting or rescue equipment may be permitted on shoreline jurisdiction at locations which are suitable considering the purpose of the proposal and the policies of this program.

g. Other Utility Production and Processing Facilities. Other utility processing facilities, such as power plants, that are non-water-oriented shall not be allowed in shoreline jurisdiction unless no other feasible alternative is available.

h. Minimum required setbacks from shorelines and side property lines and maximum height limits are contained in WCC 23.90.130, Shoreline bulk provisions – Buffers, setbacks, height, open space and impervious surface coverage.

i. Site Coverage. Maximum site coverage for utility development including parking and storage areas shall not exceed standards in the underlying zoning in WCC Title 20 and shall not exceed 50 percent on urban, urban resort and shoreline residential shorelines, 35 percent on rural and resource shorelines and 20 percent on urban conservancy and conservancy shorelines.

2. Application Requirements. All applications for new or expanded utilities shall be accompanied by adequate documentation that the proposal meets the policies and regulations of this program, including but not limited to:

a. Documentation that the facility cannot be feasibly located outside of shoreline jurisdiction due to the uses served or the need to cross shorelands to connect specific end points. An analysis of alternatives may be required. New or expanded public or private utilities should be located inland from the land/water interface, preferably out of shoreline jurisdiction.

b. Documentation that the proposed facilities comply with critical area regulations in Chapter 16.16 WCC.

c. Documentation of how the location, design and use achieves no net loss of shoreline ecological functions and incorporates appropriate mitigation in accordance with WCC 23.90.030.

d. Documentation that facilities will avoid public recreation areas and significant natural, historic, archaeological or cultural sites, and that all feasible measures to minimize adverse impacts to such resources have been incorporated into the proposal.

e. Applications must demonstrate adequate provisions for preventing spills or leaks, as well as procedures for mitigating damages from spills or other malfunctions and shall demonstrate that periodic maintenance will not disrupt shoreline ecological functions.

C. Shoreline Area Regulations.

1. Urban. Utility development consisting of local distribution facilities is permitted subject to policies and regulations of this program. Regional facilities, including transmission facilities serving customers outside of Whatcom County may be permitted as a conditional use, provided there is no feasible location outside the shoreline. Desalinization facilities may be permitted as a conditional use.

2. Urban Resort. Utility development consisting of local distribution facilities is permitted subject to policies and regulations of this program. Regional facilities, including transmission facilities serving customers outside of Whatcom County, may be permitted as a conditional use, provided there is no feasible location outside the shoreline. Desalinization facilities may be permitted as a conditional use.

3. Urban Conservancy. Utility development consisting of local distribution facilities is permitted subject to policies and regulations of this program; provided, that sewage outfalls and treatment plants, over-water communication or power lines, fuel pipelines, and other types of hazardous material pipelines may be permitted as a conditional use, provided there is no feasible location outside the shoreline. Regional facilities, including transmission facilities serving customers outside of Whatcom County, may be permitted as a conditional use, provided there is no feasible location outside the shoreline. Freestanding communication towers are prohibited. Desalinization facilities may be permitted as a conditional use.

4. Shoreline Residential. Utility development consisting of local distribution facilities is permitted subject to policies and regulations of this program. Regional facilities, including transmission facilities serving customers outside of Whatcom County, may be permitted as a conditional use, provided there is no feasible location outside the shoreline. Desalinization facilities may be permitted as a conditional use.

5. Rural. Utility development consisting of local distribution facilities is permitted subject to policies and regulations of this program. Regional facilities, including transmission facilities serving customers outside of Whatcom County, may be permitted as a conditional use, provided there is no feasible location outside the shoreline. Desalinization facilities may be permitted as a conditional use.

6. Resource. Utility development consisting of local distribution facilities is permitted subject to policies and regulations of this program. Regional facilities, including transmission facilities serving customers outside of Whatcom County, may be permitted as a conditional use, provided there is no feasible location outside the shoreline. Desalinization facilities may be permitted as a conditional use.

7. Conservancy. Utility development consisting of local distribution facilities is permitted subject to policies and regulations of this program; provided, that sewage outfalls and treatment plants, over-water communication or power lines, fuel pipelines, and other types of hazardous material pipelines may be permitted as a conditional use, provided there is no feasible location outside the shoreline. Regional facilities, including transmission facilities serving customers outside of Whatcom County, may be permitted as a conditional use, provided there is no feasible location outside the shoreline. Freestanding communication towers are prohibited. Desalinization facilities may be permitted as a conditional use.

8. Natural.

a. Utility development is prohibited.

b. Maintenance of existing utilities is permitted and shall take extraordinary measures in protecting the natural features therein.

9. Aquatic.

a. Submarine electrical or communications cables, over-water public utility lines consisting of local distribution facilities if adequately flood-proofed, water intakes, and desalinization facility intakes are permitted subject to policies and regulations of this program.

b. Submarine water and sewer lines, fuel pipelines, sewer, and desalination outfalls may be permitted as conditional uses.

c. Crossings of water bodies by over-water transmission or distribution lines and on-site electrical communication wiring may be permitted within 100 feet of the OHWM and wetlands and over bodies of water as a conditional use. All other utility development is prohibited. (Ord. 2009-13 § 1 (Exh. 1)).

23.100.170 Cherry Point management area.

A. Policies.

1. Purpose and Intent.

a. The purpose of the Cherry Point management area is to provide a regulatory framework that recognizes and balances the special port, industrial and natural resource needs associated with the development of this marine resource. This section identifies policies and regulations for water-dependent industrial activities that apply in addition to specific other elements of this program as referenced herein.

b. Washington State natural resource agencies and Whatcom County have identified certain portions of the Cherry Point management area as providing herring spawning habitat and other key habitat characteristics that warrant special consideration due to their importance to regional fisheries and other elements of the aquatic environment.

c. Development of the Cherry Point major port/industrial urban growth area will accommodate uses that require marine access for marine cargo transfer, including oil and other materials. For this reason, water-dependent terminal facilities are encouraged as the preferred use in the Cherry Point management area. Due to the environmental sensitivity of the area, it is the policy of Whatcom County to limit the number of piers to one pier, in addition to those in operation or approved as of January 1, 1998.

d. Whatcom County should consider participation with local, state, and federal agencies, tribal governments and other stakeholders in the development of a plan to address integrated management of the uplands and public aquatic lands within the Cherry Point management area. The development of such a plan could provide a forum and process for addressing aquatic resources by all stakeholders. Elements of the plan could be adopted as future amendments to this program as appropriate.

e. All development that is to be located within the Cherry Point management area, as defined in Chapter 23.110 WCC, shall be subject to the policies and regulations found in this section, and shall not be subject to the policies and regulations found in WCC 23.100.010 through 23.100.160, nor Chapter 23.90 WCC, unless otherwise referenced in this section. The policies and regulations found in this section are applicable only within the geographic boundaries of the Cherry Point management area and do not apply elsewhere in the county. In the event that the provisions of this section conflict with other applicable referenced provisions of this program, the policies and regulations that are most protective of shoreline resources shall prevail.

2. Water-Dependent Industrial Development. Only water-dependent facilities that serve industrial facilities should be allowed in the Cherry Point management area. Industry within the major port/industrial urban growth area, as designated in the County Comprehensive Plan, which is not water-dependent should locate away from shoreline jurisdiction.

3. Multiple Use Facilities. Facilities that allow for multiple use of piers, cargo handling, storage, parking and other accessory facilities are encouraged.

4. Public Access.

a. Where appropriate, industrial and port development within the Cherry Point management area should provide public beach and shoreline access in a manner that does not cause interference with facility operations or present hazards to life and property. This may be accomplished through individual action or by joint, coordinated action with other developers and landowners, for example, by setting aside a common public access area.

b. Special emphasis should be given to providing public beach and shoreline access for recreational opportunities including but not limited to crabbing, small craft launching, surf fishing, picnicking, clamming, and beach walking.

c. Public access within the Cherry Point management area should be consistent with the Whatcom County Parks and Recreation Open Space Plan.

5. Shoreline Ecological Functions and Processes. In recognition of the diverse and vital ecological resources in the Cherry Point management area, consideration of probable effects of all development proposals on shoreline ecological functions and processes should be assessed with the other long-term statewide interests. New port development that requires dredge and fill should not be permitted in the Cherry Point management area due to potential adverse effects on ecological functions, including fish and shellfish habitat and geohydraulic processes.

6. Aesthetics. All development should be designed to avoid or minimize negative visual impacts on the scenic character of the area and to ensure visual compatibility with adjacent nonindustrial zoned properties.

7. Site Development. All development should be constructed and operated in a manner that, while permitting water-dependent uses, also protects shoreline resources, their ecological functions and processes, and that incorporates the following:

a. Low impact development approaches to avoid or minimize adverse impact to topography, vegetation, water quality, fish and wildlife habitat, and other natural site conditions;

b. Adequate temporary and permanent management measures to control erosion and sediment impacts during construction and operation; and

c. Adequate stormwater management facilities.

B. Regulations.

1. Allowed Use.

a. Water-dependent industrial and port uses are allowed within the Cherry Point management area; provided, that specific findings are made in a shoreline substantial development permit or conditional use permit that:

i. Policies for optimum implementation of the statewide interest have been achieved through protection of shoreline ecological functions and processes;

ii. The long-term statewide benefits of the development have been considered with the potential adverse impacts on ecological functions; and

iii. Proposed mitigation measures to achieve no net loss of ecological functions and processes are incorporated in the proposal.

b. Water-related and water-enjoyment uses are allowed only as part of public access and public recreation development, subject to the findings in subsection (B)(1)(a) of this section.

c. Accessory development, which does not require a shoreline location in order to carry out its support functions, shall be sited away from the land/water interface and landward of the principal use. Accessory development shall observe critical area buffers in Chapter 16.16 WCC. Accessory development includes, but is not limited to, parking, warehousing, open air storage, waste storage and treatment, stormwater control facilities, utility and land transport development.

d. Road, railway and utility facilities serving approved waterfront facilities related to water-dependent uses that are located and designed to minimize shoreline alteration are permitted.

e. Waste water disposal/treatment facilities for storage or disposal of industrial or domestic waste water are prohibited, except that elements such as conveyances and outfalls shall be allowed if alternate inland sites have been demonstrated to be infeasible. Waste water conveyance systems for ships at berth shall be permitted.

2. Public Access.

a. Public access shall be provided in accordance with WCC 23.90.080 unless it is demonstrated that public access poses significant interference with facility operations or hazards to life or property.

b. If public access meeting the criteria above is demonstrated to be infeasible or inappropriate, alternative access may be provided in accordance with WCC 23.90.080 at a location not directly adjacent to the water such as a viewpoint, observation tower, or other areas serving as a means to view public waters. Such facilities may include interpretive centers and displays that explain maritime history and industry; provided, that visual access to the water is also provided.

c. As an alternative to on-site public access facilities, public access may be provided in accordance with a public access plan adopted as an element of the Whatcom County Parks and Recreation Open Space Plan.

3. Critical Areas. In addition to meeting the provisions of WCC 23.90.030, Ecological protection and critical areas, development and alteration shall not be located or expanded within critical areas designated pursuant to Chapter 16.16 WCC except where the site is approved for water-dependent use, and the following are met:

a. Mitigation to achieve no net loss of ecological functions and processes shall be conducted in accordance with WCC 23.90.030.

b. Development and alteration shall not be allowed in wetlands in the backshore area. Upland development shall demonstrate that changes in local hydrology will not decrease the viability of the wetland environment nor degrade the existing water quality within the wetland.

c. The minimum required setback from the OHWM for all industrial and port facilities, including development components, which do not require a water’s edge or water surface location shall be 150 feet; provided, that bluffs and banks greater than 10 feet in height and sloping greater than 30 percent and wetland shorelines shall have such setbacks measured from the crest of the bank or the edge of the wetland in addition to the OHWM.

d. Development and alteration other than recreation development for public and quasi-public shoreline access is prohibited on the accretion shoreforms identified on the map in Appendix C of this title, subject to the regulations in this section and consistent with the conservancy and aquatic shoreline area designation policies and regulations of Chapters 23.90 and 23.100 WCC; provided, that lawfully established uses or developments may be maintained subject to the provisions of WCC 23.50.070.

4. Location and Design.

a. Piers.

i. Piers shall be designed to accommodate only the necessary and intrinsic activities associated with the movement of material and cargo from land to water and water to land. The length of piers shall not extend beyond that which is necessary to accommodate the draft of the vessels intending to use the facility. Due to the environmental sensitivity of the area, Whatcom County shall limit the number of piers to one pier, in addition to those in operation as of January 1, 1998.

ii. Piers shall be designed to minimize interference in the intertidal zone and adverse impacts to fish and wildlife habitats.

iii. Piers shall be designed to minimize impacts on steep shoreline bluffs.

iv. All pilings in contact with water shall be constructed of materials such as concrete, steel, or other materials that will not adversely affect water quality or aquatic plants or animals. Materials used for decking or other structural components shall be approved by applicable state agencies for contact with water to avoid discharge of pollutants from wave splash, rain, or runoff. Wood treated with creosote, copper chromium arsenic or pentachlorophenol is prohibited; provided, that replacement of existing wood pilings with chemically treated wood is allowed for maintenance purposes where use of a different material such as steel or concrete would result in unreasonable or unsafe structural complications; further provided, that where such replacement exceeds 20 percent of the existing pilings over a 10-year period, such pilings shall conform to the standard construction provisions of this section.

v. All piers on piling structures shall have a minimum vertical clearance of one foot above extreme high water.

vi. Bulk storage of gasoline, oil and other petroleum products for any use or purpose is not allowed on piers, except for temporary storage under emergency situations, including oil spill cleanup. Bulk storage means nonportable storage in fixed tanks. Secondary containment shall be provided for portable containers.

vii. All piers shall be located and designed to avoid impediments to navigation and to avoid depriving other properties of reasonable access to navigable waters. All piers shall be marked with navigational aids and approved for compliance with U.S. Coast Guard regulations.

b. Dredging.

i. Dredging to accommodate water access to, or construction of, new development is prohibited. New development shall be located and designed to avoid the need for dredging. Dredging for existing development shall be the minimum necessary and shall minimize interference in the intertidal zone and impacts to fish and wildlife habitats.

ii. Dredging operations, including spoil disposal, shall be conducted in accordance with policies and regulations in WCC 23.90.120(B)(4) and (5), Dredging.

iii. Dredging is prohibited in the accretion shoreform and backshore wetland areas described in Appendix C of this title.

c. Landfill is prohibited, except for the minimum necessary to access piers or other structures that provide access to the water. Pier design should accommodate the connection between the pier and uplands by employing a pile-supported structure to the point of intersection with stable upland soils. Limited landfill may be allowed for pier access that does not extend further toward the OHWM than existing topography.

d. Excavation/Stabilization.

i. Excavation/stabilization of bluffs is prohibited, except for the minimum necessary to access piers or other structures that provide access to the water; provided, that active feeder bluffs shall not be altered if alteration will adversely affect the existing littoral drift process. New development shall avoid, rather than modify, feeder bluffs.

ii. Excavation/stabilization is prohibited on accretion shoreforms and in wetlands in the backshore area.

e. Shore defense works shall be regulated in accordance with WCC 23.100.130, Shoreline stabilization, and be consistent with the conservancy and aquatic shoreline area regulations of that section.

5. Adjacent Use.

a. New or expanded port or industrial development adjacent to properties which are zoned for nonindustrial purposes shall provide setbacks of adequate width, to attenuate proximity impacts such as noise, light and glare; and may address scale and aesthetic impacts. Fencing or landscape areas may be required to provide a visual screen.

b. Exterior lighting shall be designed and operated to avoid illuminating nearby properties zoned for nonport or nonindustrial purposes so as to not unreasonably infringe on the use and enjoyment of such property, and to prevent hazards for public traffic. Methods of controlling illumination of nearby properties include, but are not limited to, limits on height of structure, limits on light levels of fixtures, light shields and screening.

c. The minimum setback from side property lines which intersect the OHWM for industrial and port development shall be 60 feet; provided, that:

i. The side yard setback shall not apply to utility or security structures such as poles, meters, fences, guard houses, power vaults or transformers; and

ii. The side yard setbacks for parcels adjoining the NW and SE boundaries of the Cherry Point management area shall be administered in accordance with WCC 20.68.550 (Buffer Area).

d. Required setbacks shall not be used for storage of industrial equipment or materials, or for waste disposal, but may be used for public access or outdoor recreation.

6. Oil and Hazardous Materials.

a. Release of oil or hazardous materials on shorelines is prohibited.

b. A management plan shall be developed for new permitted or conditionally permitted development for the safe handling of cargo, fuels, bilge water, and toxic or hazardous materials to prevent them from entering aquatic waters, surface or ground water. Specific provisions shall address prompt and effective clean-up of spills that may occur. Management plans shall be coordinated with state or federal spill response plans. Where a spill management/response plan has been approved by the state, said plan may be used to satisfy the requirements of this section.

c. Necessary spill containment facilities associated with existing development may be permitted within shoreline jurisdiction where there are no feasible alternatives.

7. Recreational Development. All recreational development shall comply with the policies and regulations of WCC 23.100.100 and be consistent with the conservancy and aquatic shoreline area regulations of that section.

8. Archaeological, Historic and Cultural Resource Management. All development associated with archaeological, historic or cultural site activities shall comply with the policies and regulations of WCC 23.90.070. (Ord. 2014-051 §§ 5, 6; Ord. 2009-13 § 1 (Exh. 1)).