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SHORELINE MASTER PROGRAM UPDATE APPROVED

On Tuesday, January 22, 2013, the Council unanimously adopted a 378 page Council Bill 117585 comprising the first comprehensive update of Seattle’s Shoreline Master Program (SMP) since 1987. Department of Planning and Development (DPD) staff began working on this update in 2007, and my Committee began our review last August.

The SMP is an important and complex set of regulations that govern development and uses on and adjacent to shorelines. For Seattle this includes Puget Sound, Lake Washington, Lake Union and the Ship Canal, the Duwamish River, Green Lake, and wetlands and floodplains around these. The SMP affects land uses, structures and activities, including those occurring over water and on vessels, the location of structures including setbacks and allowed over water coverage, public access requirements, and construction practices related to bulkheads, docks and piers.

Updating the SMP is required under the State Shoreline Management Act (SMA), created by citizen initiative and adopted by voters in 1972. The SMA establishes policy goals for the management of shorelines, and the state’s SMP guidelines set requirements for how to achieve these, with some flexibility for local concerns and conditions. The Department of Ecology (DOE) has overall responsibility for approving state and local regulations under the SMA. Ecology issued guidance to local governments on how to complete this required update, and will review the final product. Our goal is to craft an update that Ecology can approve; if Ecology staff finds that there are provisions that do not comply adequately with the SMA, they will return the ordinance to the City for revisions.

The SMA specifies three major policy directions:

Preferred Shoreline Uses:  Water-oriented uses such as port facilities, shoreline recreational uses, and water-dependent businesses are preferred uses. Single-family residences are a preferred use if developed in a manner consistent with protection of the natural environment.

Environmental Protection:  The Act requires protecting shoreline natural resources, including “… the land and its vegetation and wildlife, and the water of the state and their aquatic life …” to ensure no net loss of ecological function. No net loss of ecological functions means that the existing condition of shoreline ecological functions should not deteriorate because of development in the Shoreline District.

Public Access: The Act promotes public access to shorelines, including view protection.

The intense and comprehensive efforts of DPD and staff in the City Attorney’s Office, along with several phases of public involvement, resulted in legislation that addressed most of the actions required under state law. The Council held a public hearing along with public comment sessions at each of our seven Committee deliberations on the SMP. We met with representatives of key affected constituencies, including people who live on boats and floating homes and water dependent businesses. We also took field trips to visit houseboat communities and affected businesses. As a result of our work, we initiated and approved some 50 amendments to the legislation. Many of these amendments were technical modifications, and most of the others clarify various situations involving water dependent businesses. However, the Committee also strengthened some provisions relating to environmental protection and modified provisions relating to future regulation of people living on vessels.

The core of the legislation adopts the key recommendations from DPD, including:

  • Ensuring No Net Loss (NNL) of ecological functions.
  • Regulating environmentally critical areas located in the Shoreline District under the SMP.
  • Developing a restoration plan that results in improved ecological functioning of the shoreline.
  • Requiring that non-water-oriented uses include ecological restoration.
  • Requiring that ecological restoration be included when replacing non-conforming uses and structures.
  • Including shoreline buffers for all shoreline environments.
  • Allowing 20% of a site to be used for uses that are not water-dependent or water-related (WD/WR) if they support WD/WR uses.
  • Allowing additional height for permitted structures that are not WD/WR and for accessory uses.
  • Allowing WD/WR uses to be located over water on lots in the Urban Commercial and Urban Maritime shoreline environments and allowing certain non-water-dependent or water-related uses to be located overwater as a Conditional Use.
  • Requiring projects to avoid impacts and mitigate remaining impacts to achieve NNL.
  • Defining and protecting priority freshwater and saltwater habitat.
  • Allowing existing structures in the urban shoreline environments built in the required setback to be replaced if mitigation is provided.
  • Allowing recreational marinas in the Urban Industrial and Urban Maritime shoreline environments in the Lake Union Ship Canal.
  • Maintaining current regulations allowing floating homes to be repaired, maintained, and replaced.
  • Prohibiting new floating homes.
  • Maintaining current regulations prohibiting house barges after 1990 and requiring water quality protection while providing for the preferred uses and public access of the shoreline.

There is also a draft shoreline restoration plan that will be used by the City to identify the types of restoration that will increase ecological functions along Seattle’s shorelines.

SMP update documents may be accessed on DPD’s website at:

http://www.seattle.gov/dpd/Planning/ShorelineMasterProgramUpdate

Here are some examples of amendments that the Council made to the SMP:

  • We created a provision in the proposed allowed height and setback provisions for water dependent businesses to match the requirements for a Seattle company to modify their structure for building boats for Washington State Ferries. The improvements will not only make it possible to construct our ferries locally in a more efficient and economical way, but will reduce environmental impacts on the waterway.
  • A provision defining fueling stations as water dependent uses inadvertently omitted the qualifier that these stations must only be for boats; we fixed that.
  • A provision regulating single family homes in the shoreline environment did not exclude the use of historic lot lines that were not intended to define buildable lots (see my blog post    for an explanation!). We modified the lot definition.
  • Language limiting signs in the shoreline area was strengthened.
  • A provision prohibiting artificial reefs in functioning habitats was added.
  • Language was added that directs DPD to prohibit the use of pesticides and fertilizers that impact ecological functions in the shoreline environment.
  • In several cases, language was added that recognized that water dependent businesses can depend on certain non water related activities to sustain them financially. We allowed some exceptions to the use standards as long as there was no ecological impact and the property owner made a proportional investment in ecological restoration.

The most challenging aspect of the SMP amendments has to do with figuring out how to address residences on the water. State law specifies that residential uses over water are not preferred uses of the shoreline/water environment. The City cannot change that law – it is based on the SMA initiative, and only the Legislature could modify it. The State did grant exceptions to allow some 480 recognized floating homes and 34 house barges, but has made it clear that there will be no new exceptions.

The SMA also allows liveaboards on “vessels designed and used for navigation”. The SMP language does not change the law for people currently residing on existing structures that meet the State law definition of vessel. There are new standards that will create a clearer process for DPD to determine whether a future moored structure is the type of vessel that is allowed to be used as a dwelling unit, but this language does not apply to current residents.

Unfortunately, some residents are uncertain whether they actually live in a vessel. There have been some structures that are claimed to be vessels that are really houses on floats, which clearly do not meet the intent of the State law. There are enforcement proceedings underway in regards to owners whom DPD believes are in violation of the code. If, in the future, other owners receive a notice of violation, that person would have the opportunity to provide DPD with information showing that the floating residence is a vessel and the opportunity for judicial review. Only a judge can make the final determination as to whether an owner is in violation of the law and determine the consequences.

The Council would like to assist residents who are on vessels that are likely to be legal, but we have not come up with language that would do so and is still consistent with State law. We will continue to work on ways to resolve the uncertainty that the owners of an estimated 150 vessels/structures feel as they try to determine on which side of that line they fall. That could include additional SMP language or City administrative measures that could help to resolve uncertainties.

The Shoreline Management Act is a signal achievement of Washington’s commitment to environmental stewardship, preserving water dependent industry, and ensuring public access to the shoreline and waters of the State. As with many such legislative achievements, the details require careful and thoughtful review and management to ensure that the goals are truly being met. This package of SMP amendments is a positive and proactive step in the right direction.

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