Chapter 2
Scope, Jurisdiction, and Exemptions
SECTIONS:
2.1 Rule of Liberal Construction
2.3 Port Townsend Shoreline Jurisdiction
2.5 Relationship to Other Plans and Regulations
2.1 Rule of Liberal Construction
As Provided Under RCW 90.58.900, the Shoreline Management Act is exempted from the rule of strict construction; the Act and this Master Program shall, therefore, be liberally construed to give full effect to the purposes, goals, policies, and standards for which the Act and this Master Program were enacted. On the other hand, exemptions from the Act or Master Program are to be narrowly construed.
2.2 Applicability
A. All proposed uses and development occurring within shoreline jurisdiction must conform to the Shoreline Management Act (SMA) and this Master Program. All uses, even those not meeting the definition of development, are subject to the provisions and development regulations of this SMP, even though a permit may not be required.
B. Any person wishing to undertake activities constituting “development” within shoreline jurisdictions shall apply to the Shoreline Administrator for a Shoreline Permit. Based on the provisions of this Master Program, the Shoreline Administrator shall determine if a Letter of Exemption, a Substantial Development Permit, a Shoreline Conditional Use Permit, and/or a Shoreline Variance is required. Substantial development shall not be undertaken within the jurisdiction of the Act and this Master Program UNLESS a Substantial Development Permit has been obtained and the appeal period has been completed and any appeals have been resolved and/or the project proponent is allowed to proceed under the provisions of the Shoreline Management Act or by court order.
"Substantial development" shall be defined as it is by the Act (§90.58.030 RCW) and supplementing provisions of the Washington Administrative Code (§173-27-040 WAC). Procedures and processes for Substantial Development Permits can be found in Chapter 9, Conditional Use Permits – Chapter 10, and Variances – Chapter 11.
C. Developments exempt from a Substantial Development Permit, which are outlined in Section 2.4 D, shall require a Letter of Exemption. A project that qualifies as “exempt development” may also require a Shoreline Conditional Use Permit, and/or a Shoreline Variance from Master Program provisions.
1. Exempt developments shall not be undertaken within the jurisdiction of the Act and this Master Program UNLESS a Letter of Exemption has been obtained documenting that the development is consistent with the policies and procedures of the Act, all applicable state regulations and this Master Program.
2. The request for the Letter of Exemption shall be in writing, on forms required by the Shoreline Administrator, and include the information required by the Shoreline Administrator.
D. This Master Program shall apply to every individual, firm, partnership, association, organization, corporation, local or state governmental agency, public or municipal corporation, or other non- federal entity which develops, owns, leases or administers lands, wetlands or waters that fall under the jurisdiction of the Act, EXCEPT for the right of any person established by treaty to which the United States is a party.
E. The “policies” in this Master Program provide broad guidance and direction and will be used by the City in applying the “regulations.”
F. Applicability of this Master Program to federal lands and agencies shall be consistent with WAC 173-27-060 as currently exists or is hereinafter amended.
G. Applicability to uses not requiring development - The City intends to regulate development within the shoreline jurisdiction under its general police power authority to regulate for the general health, safety, and welfare and its specific authority under the SMA. All uses within the shorelines jurisdiction must be consistent with the policies and regulations of the Port Townsend Shoreline Master Program whether or not they require development. Furthermore, Shoreline Conditional Use and/or Shoreline Variance permits may still be required of development that is not substantial development. An exemption from the Substantial Development Permit requirements does not constitute an exemption from the policies and use regulations of the Shoreline Management Act, the provisions of this Master Program, and other applicable city, state, or federal permit requirements.
WAC 173-27-140(1): “No authorization to undertake use or development on shorelines of the state shall be granted by local government unless upon review the use or development is determined to be consistent with the policy and provisions of the Shoreline Management Act and the Master Program.” (Bold emphasis added.)
2.3 Port Townsend Shoreline Jurisdiction
A. This Master Program shall apply to all the lands and waters in the City of Port Townsend that fall under the jurisdiction of the Shoreline Management Act. Shorelines within Port Townsend include the Strait of Juan de Fuca, Admiralty Inlet, Port Townsend Bay, Chinese Gardens, and Kah Tai lagoon together with the lands underlying them and all lands extending landward 200 feet in all directions as measured on a horizontal plane from the ordinary high water mark together with any associated wetlands.
B. There is hereby made a part of this Master Program a map, Appendix A, illustrating the shoreline designations and the approximate location of the upland extent of the shoreline jurisdiction in Port Townsend. The area of shoreline jurisdiction extends waterward to the Port Townsend City Limits. The actual landward extent of shoreline jurisdiction will be determined on a case-by-case basis.
C. Given that the Shoreline Designation Map is an integral part of this Master Program, no part of the map may be altered or revised unless a Master Program amendment has been approved by the City Council and the Washington State Department of Ecology (RCW 90.58.090).
D. Associated wetlands that are included in the shoreline jurisdiction are those that influence or are influenced by the regulated waters including the Puget Sound, Kah Tai Lagoon and Chinese Gardens. In general, a wetland is “associated” if all or a portion of the wetland falls within that area that is 200 feet from the ordinary high water mark. A wetland outside of this area may also be associated if it is in proximity to the shoreline and there is a demonstrated influence between the wetland and the shoreline. Such influence can include hydraulic continuity, such as a surface or groundwater connection.
E. Application to projects only partially located within shoreline jurisdiction - For projects lying partially within shoreline jurisdiction, the shoreline permit must incorporate consideration of the entire integrated project and a determination of consistency with the policies of the Shoreline Management Act and this Master Program must be made and uses must be found compatible with shoreline uses within the applicable designation. However, only the portion within the shoreline jurisdiction must meet the regulations and standards (e.g., height limit, lot coverage, etc.) of this Master Program.
2.4 Exemptions from Substantial Development Permit
A. General. All applications for exemptions shall be made on a form provided by the Shoreline Administrator and accompanying material as required by Chapter 20.01 PTMC. All exemptions shall be construed narrowly. An exemption from the substantial development process is not an exemption from compliance with the SMA or this Master Program, nor from any other regulatory requirements. To be authorized, all uses and developments must be consistent with the policies and provisions of the SMA and of this Master Program. The Shoreline Administrator may attach conditions to the approval of exempted developments and/or uses as necessary to assure consistency of the project with the Shoreline Management Act and this Master Program. A Letter of Exemption shall expire one year after the date of issuance unless otherwise specified in the Letter of Exemption.
B. Whenever a development falls within the exemption criteria listed in 2.4.D. below and is subject to a U.S. Army Corps of Engineers Section 10 or Section 404 Permit, the Shoreline Administrator shall prepare a Letter of Exemption and send a copy of this statement to the Washington Department of Ecology.
C. Incremental exemptions – Exemptions shall not be issued for a series of inter-dependent activities that in sum would require a permit (i.e., a project cannot be submitted in a piece-meal fashion to avoid the requirement for a substantial development permit).
D. Exemptions from Substantial Development Permit – The following shall not be considered substantial development for the purpose of this Master Program.
1. Any development of which the total cost or fair market value, whichever is higher, does not exceed five thousand ($5,000) dollars, if such development does not materially interfere with the normal public use of the water or shorelines of the state.
For purposes of determining whether or not a Substantial Development Permit is required, the total cost or fair market value shall be based on the value of development that is occurring on shorelines of the state. The total cost or fair market value of the development shall include the fair market value of any donated, contributed or found labor, equipment or materials;
2. Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements. "Normal maintenance" includes those usual acts to prevent a decline, lapse, or cessation from a lawfully established condition. "Normal repair" means to restore a development to a state comparable to its original condition within one year after decay or partial destruction except where repair causes substantial adverse effects to the shoreline resource or environment. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including but not limited to its size, shape, configuration, location and external appearance and the replacement does not cause substantial adverse effects to shoreline resources or environment;
3. Construction of a soft-bank revetment, bioengineered, or beach nourishment erosion control projects associated with a single- family residence when the project has been approved by the Department of Fish and Wildlife. Construction of a "normal protective bulkhead" or “rip-rap” at or near the ordinary high water mark to protect a single-family residence shall require a Shoreline Conditional Use Permit and must demonstrate that the proposed protective bulkhead or rip-rap is the most natural protective system that is feasible on the site. Such improvements must be for protecting land from erosion, not for the purpose of creating dry land;
4. Emergency construction necessary to protect property from damage by the elements. An "emergency" is an unanticipated and imminent threat to public health, safety, or the environment, which requires immediate action within a time too short to allow full compliance with the Act or this Master Program. Emergency construction does not include development of new permanent protective structures where none previously existed. Where new protective structures are deemed by the Shoreline Administrator to be the appropriate means to address the emergency situation, upon abatement of the emergency situation the new structure shall be removed or any permit which would have been required, absent an emergency, obtained. As a general matter, potential flooding or other seasonal events that can be anticipated and may occur but that are not imminent are not an emergency. A written statement from a qualified professional may be required to verify that an emergency exists;
5. Construction or modification, by or under the authority of the Coast Guard or a designated port management authority, of navigational aids such as channel markers or “no anchor zone” buoys;
6. Construction by an owner, lessee, or contract purchaser of a single family residence for such person’s own use or for the use of his or her family, which residence does not have a building height that exceeds thirty (30) feet and meets all requirements of the state agency or local government having jurisdiction thereof;
7. Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water for the irrigation of lands;
8. The marking of property lines or corners on private or government owned lands, when such marking does not significantly interfere with the normal public use of the surface waters;
9. Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on and in use since September 8, 1975, which were created, developed or utilized primarily as part of an agricultural drainage or diking system;
10. Any project with certification from the governor pursuant to Chapter 80.50 RCW in regards to energy facilities to meet state demands;
11. Watershed restoration projects as defined in WAC 173-27-040. Local government shall review the projects for consistency with the Shoreline Master Program in an expeditious manner and shall issue its decision along with any conditions within forty-five (45) days of receiving all materials necessary to review the request for exemption from the applicant. No fee may be charged for accepting and processing requests for exemption for watershed restoration;
12. Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this chapter, if:
a. The activity does not interfere with the normal public use of the surface waters;
b. The activity will have no significant adverse impact on the environment including but not limited to fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values;
c. The activity does not involve the installation of any structure, and upon completion of the activity, the vegetation and land configuration of the site are restored to conditions existing before the activity; and,
d. At the discretion of the Shoreline Administrator, a bond may be required to the local jurisdiction to ensure that the site will be restored to preexisting conditions.
13. A public or private project, the primary purpose of which is to improve fish or wildlife habitat or fish passage, when all of the following apply:
a. The project has been approved in writing by the Department of Fish and Wildlife as necessary for the improvement of the habitat or passage and appropriately designed and sited to accomplish the intended purpose;
b. The project has received hydraulic project approval by the Department of Fish and Wildlife pursuant to Chapter 77.55 RCW; and
c. The Shoreline Administrator has determined that the project is consistent with this Master Program.
E. Before issuing a shoreline Letter of Exemption, the Shoreline Administrator shall review the Master Program to determine if the proposed development requires a Shoreline Conditional Use Permit and/or a Variance. It may be necessary for the Shoreline Administrator to conduct a site inspection to ensure that the proposed development meets the exemption criteria. Application information shall include those items listed in Chapter 10, Section 10.9 for Substantial Development Permits unless otherwise waived.
2.5 Relationship to Other Plans and Regulations.
A. In addition to compliance with the provisions of the Shoreline Management Act of 1971 and the state Shoreline Guidelines, the Port Townsend Shoreline Master Program must be consistent with local plans and policy documents, specifically, the Port Townsend Comprehensive Plan and the City’s critical areas regulations. The Master Program must be consistent with the regulations developed by the City to implement its plans, such as the zoning code and subdivision code, as well as regulations relating to building construction and safety.
B. Uses, developments and activities regulated by this Master Program may also be subject to the provisions of the City of Port Townsend Comprehensive Plan, the Washington State Environmental Policy Act (“SEPA”, Chapter 43.21C RCW and Chapter 197-11 WAC), the City of Port Townsend Municipal Code, and various other provisions of local, state and federal law, as may be amended. Project proponents shall comply with all applicable laws prior to commencing any use, development or activity.
In the event a conflict occurs between the provisions of this Master Program and the laws, regulations, codes or rules of any other authority having jurisdiction within the City, the regulations that provide more protection to the shoreline area shall apply, EXCEPT when constrained by federal or state law, or where specifically provided otherwise in this Master Program.
C. An applicant applying for a permit with the City is required to be in compliance with all other local, county, state, regional, or federal statutes or regulations, which may also be applicable to such development or use. Examples of activities that may require permits, review, or approval from other agencies are listed in the following table.
|
Agency |
Authority/Jurisdiction |
Types of Activity Requiring Permit |
Permit |
|---|---|---|---|
|
Federal Emergency Management Agency (FEMA) |
CFR 44, Part 60
This Ordinance applies to the areas designated as flood zones on FEMA’s Federal Insurance Rate Map. |
All construction within and uses of the floodplain must meet the standards established in the Port Townsend Municipal Code, section 19.05.090. |
Review for compliance with FEMA guidelines is conducted through enforcement of the Port Townsend Frequently Flooded Areas. |
|
Sect. 404 of Clean Waters Act
Jurisdiction extends to Ordinary High Water Mark of all waters of the US and includes all adjacent wetlands |
Discharge of dredged materials, fills, grading, ditch sidecasting, groins, breakwaters, road fills, beach nourishment, riprap, jetties, etc. |
Section 404 Permit
(some limited activities are covered by nationwide general permits) |
|
|
Washington Department of Agriculture |
Varies |
Use of pesticides by any means other than hand pumped device - varied restrictions apply depending on the ownership of the property receiving the pesticide, the type of pesticide, etc. |
Varies |
|
Washington State Department of Fish and Wildlife
(DFW) |
RCW 75.20.100-160.
All fresh or salt water in the state |
Work, construction, development, or other activities that will change the natural flow or bed of any fresh or salt water in the state. |
Hydraulic Project Approval (HPA) |
|
Washington State Department of Natural Resources (DNR) |
RCW 79.90.
Navigable water bodies, including certain lakes, rivers, and streams. These waters are owned by the State of Washington. |
Construction, filling, dredging, drilling, mining, road construction, utility installation, etc., within the beds or shorelines of these waters. |
Aquatic Lands Lease and/or Authorization. |
|
|
RCW 76.09.
Water bodies near forest activities |
Forest activities relating to growing, harvesting or processing timber, road construction and maintenance, brush clearing, slash disposal. |
Forest Practice Approval |
|
Washington State Department of Ecology
(DOE) |
Section 401, Clean Water Act |
Any activity that might result in a discharge of dredge or fill material into water or wetlands, or excavation in water or wetlands that requires a federal permit (e.g. maintenance dredging). |
Water Quality Certification |
|
RCW 90 (various chapters) |
Withdrawal of surface or ground water. |
Water Use Permit; Certificate of Water Right |
|
|
RCW 43.21C
Determined by the scope of the project. See also: City of Port Townsend, SEPA.
Water Pollution Control Act (RCW 90.48) |
SEPA is a process that provides a way to analyze and address the environmental impacts of a project and is geared to mesh with already existing permits, approvals, and/or licenses.
Act prohibits discharges of polluting matter to any waters of the state, including wetlands. A permit is required for any project potentially impacting state waters. |
State Environmental Policy Act (SEPA) Review
Various permits, including NPDES, Municipal Wastewater, and Septic permits. |
|
|
City of Port Townsend |
Port Townsend Shoreline Master Program - SMP jurisdiction is listed in Chapter 1 of this document. |
Development within the shoreline jurisdiction of Port Townsend. |
Shoreline Substantial Development Permit
Shoreline Conditional Use Permit
Shoreline Variance |
|
Port Townsend Municipal Code, Chapter 16.04 |
Development over 200 Square feet. See Uniform Building Code |
Building Permit |
|
|
Port Townsend Municipal Code, Chapter 19.05 Environmentally Sensitive Areas (ESAs) is the adopted code intended to carry out FEMA requirements within the 100-year floodplain |
All development activity, including buildings, mining, filling, dredging, grading, paving, excavations, drilling operations, and storage of equipment or materials. |
For frequently flooded areas, the review for compliance with this ordinance is conducted as a part of the development review and building permit process. |
|
|
Title 17, Zoning Code |
Development within the City of Port Townsend |
Zoning Variance
Zoning Conditional Use
Zone Change |
|
|
Chapter 19.05 Environmentally Sensitive Areas |
Development in a Sensitive Area (Wetlands, Wildlife Habitat Areas, Aquifer Recharge Areas, Flood Hazard Areas, Geologic Hazard Areas, etc.) |
Sensitive Areas Permit |
|
|
Port Townsend Municipal Code, Chapter 19.04 contains the Port Townsend State Environmental Policy Act (SEPA) Policies
(This is the local ordinance intended to carry out the state SEPA requirements.) |
All activity meeting the threshold identified in RCW 43.21C and WAC Chapter 197-11. |
State Environmental Policy Act (SEPA) Review |
|
|
Port Townsend Municipal Code, Chapter 13.32 Stormwater Management |
Fill or grading over 50 cubic yards of material.
Fill or grading of under 50 cubic yards if heavy equipment is used. |
Temporary Sedimentation and Erosion Control Permit
And/or Clearing & Grading Permit |
|
|
U.S. Army Corp of Engineers |
Section 10 of the Rivers & Harbors Act of 1899
Section 404 of the Clean Water Act |
Dredge or fill materials discharged into waters of the United States |
Section 10
404 Permit |
|
U.S. Coast Guard |
Section 9 Bridge Permit |
Construction of any bridge across navigable waters of the United States |
Section 9 |
At the time of an initial inquiry or when a permit application is submitted, the Shoreline Administrator should inform an applicant of those regulations and statutes that may be also applicable to the proposed project to the best of the Administrator’s knowledge, PROVIDED, that the final responsibility for determining the applicability and complying with such other statutes and regulations shall rest with the applicant.
Other activities that could occur along the shoreline (starting bonfires, disposing or spilling/releasing of regulated or hazardous waste products, use of pesticides, activities within wetlands) may require other permits, review, or approval not identified here.