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Shoreline Development: Look at the Big Picture – and Plan Ahead
May 15, 2020

By Elizabeth A. Rosso

Previous posts have discussed the environmental considerations for hypothetical development projects.  In this post, the proposed project is a mixed use development in Washington that includes access to a waterfront area – for example, a complex including residences, shops, and a waterfront park.  How does the project’s waterfront location impact your planning?

Under Washington’s Shoreline Management Act, substantial development on the shorelines of the state shall not be undertaken “unless it is consistent with the policy of this chapter and, after adoption or approval, as appropriate, the applicable guidelines, rules, or master program.”  RCW 90.58.140(1).  In addition, substantial development on the shorelines of the state requires a permit.  RCW 90.58.140(2).

First, some definitions.  “Shorelines” are all water areas of the state and their associated shorelands.  “Shorelands” is the land extending for 200 feet in all directions from the ordinary high water mark (OHWM).  RCW 90.58.030.  “Substantial development” means “any development of which the total cost or fair market value exceeds five thousand dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state.”  RCW 90.58.030(3)(e).  “Development” is, in part, “a use consisting of the construction or exterior alteration of structures…bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this chapter at any state of water level.”  RCW 90.58.030(3)(a).  Should your project meet these definitions, it will need to comply with Washington’s shoreline management procedures.

Washington’s shoreline management procedures are found at WAC Chapter 173-27.  That chapter requires local governments to establish a program for administration and enforcement of permits for shoreline management.  The regulations provide only “minimum procedural requirements.”  WAC 173-27-020.  That leaves the local government’s Shoreline Master Program (SMP) as the main governing document for development of shorelines in that jurisdiction.  For purposes of our discussion, let’s locate the project within the City of Vancouver.

The SMP applies to all shorelines and waters within City limits.  SMP Section 2.1.1.a.  Substantial development requires a substantial development permit issued by the Shoreline Administrator, unless the use or development is specifically exempt, in which case a letter of exemption is required.  Moreover, under SMP Section 2.3.1(5), “If a shoreline substantial development permit is required for any part of a proposed development, then a shoreline substantial development permit is required for the entire proposed development project.”  Thus, for purposes of shoreline permitting, if any one portion of the project is located in a shoreline area – such as the waterfront park in our example – then the entire development is considered to be in a shoreline area, even if other portions – such as the residences, shops, and restaurants in our example – might be more than 200 feet from the OHWM.

The SMP contains a host of goals and policies which are implemented through the regulations in SMP Chapters 5 and 6.  These goals and policies include preservation of archaeological, historic, and cultural resources; conservation of shoreline features and ecological functions; creation and maintenance of an economic environment that is balanced with the natural and human environment; flood prevention and flood damage minimization; public access and recreation; restoration of shoreline ecological functions; avoidance of shoreline armoring; allowing for mutually compatible uses; provision for transportation and utilities; preserving views and aesthetics; and maintaining or enhancing water quality.  The project will need to comply with all of these.

If the shoreline in question is designated as a high intensity shoreline, then additional management policies apply: no net loss of shoreline ecological functions as a result of new development; promotion of infill and redevelopment; encouraging transition from non-water-oriented uses to water-oriented uses; and allowing new non-water-oriented uses if the use “has limited access to the shoreline and when included in a master plan or part of a mixed-use development.”  SMP 4.3.5.4.

Table 6-1 of the SMP identifies the uses that are prohibited, may be permitted, or may be permitted with a conditional use approval in each shoreline designation.  The use most closely matching our proposed project is multifamily residential use which, in a high intensity designation, requires a permit.  See SMP Table 6-1.

In addition, Vancouver has established the Columbia River Shoreline Enhancement Plan District.  This district is an overlay on underlying zones.  For purposes of this discussion, assume that the project is located in an underlying zone.  Per VMC 20.620.010(B), “The regulations of the Columbia River Shoreline Enhancement Plan District are in addition to the requirements of the underlying zone.  The district established additional land use regulations, master development plan requirements and incorporates a public access element.”  The master plan process must be coordinated with the requirements of the Shoreline Management Act and the SMP, see VMC 20-620.030(B)(4).  The Columbia River Shoreline Enhancement Plan District has also been incorporated into the requirements of the SMP.

As you might expect, navigating this process and obtaining the required permits takes some time.  The City is responsible for reviewing applications for substantial development permits and issuing or denying the permits.  The Washington Department of Ecology may review the City’s decision and petition for review of same.  The City shall process substantial development permit applications in accordance with the Type II review procedures set forth in VMC 20.210.050, with the exception that the public comment period shall be 30 days.  SMP 7.4.3.  The entire process takes approximately 192 calendar days from receipt of a completed application, followed by an appeal period of 14 calendar days after the notice of decision has been mailed.  The City’s decision is not final until expiration of the appeal period.

To summarize, in the shoreline management context, a project such as the one contemplated here must be viewed in its entirety.  It will require a substantial development permit from the city, and must comply with the goals and policies of the SMP.  It must also comply with the requirements of the Columbia River Shoreline Enhancement Plan District.  The shoreline permitting process will take more than six months – so early planning and coordination are crucial.

Recent Posts:
Private Development Projects on Federal Land May Trigger National Environmental Policy Act Requirements
Archaeological Artifacts: Considerations for Site Development 
Aquatic Land Leases in Washington 

Elizabeth Rosso is an attorney at Jordan Ramis PC who focuses her practice on environmental law. Contact her at elizabeth.rosso@jordanramis.com or (503) 598-7070.
   
Thank you for your interest in this blog. The information contained in this blog is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our environmental and natural resources practice group.
 
 



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