Hughes Dock Permit - comment letter to first HEX

Hughes Dock Permit - comment letter to first HEX

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October 31, 2005 Lee McEnery San Juan County Community Planning & Development Department 135 Rhone Street Friday Harbor, WA 98250 Re: Hughes Dock Permit, Pearl Island, WA, TPN 461454023; Shoreline Substantial Development Permit No. 05SJ013 Dear Lee: Friends of the San Juans respectively submits the following comments on the proposed single use dock for the Hughes property, Lot 23, Pearl Island Subdivision, TPN 461454023. We recommend denial of the substantial shoreline development permit as the proposed project is inconsistent with state law and multiple provisions of the San Juan County Shoreline Master Program. Adverse Impacts to Eelgrass The near-shore environment of the Hughes property contains thick beds of eelgrass. The application states that “there is eelgrass running along the entire coast of the project area” and “adverse impacts to eelgrass are expected.” (pg. 2, August 24, 2005, letter to Matt Zybas from Francine Shaw). Eelgrass is a saltwater habitat of “special concern,” and “serves essential functions in the developmental life history of fish or shellfish.” WAC 220-110-250. Construction of docks, ramps, floats and piers “shall incorporate mitigation measures as necessary to achieve no-net-loss of productive capacity of fish and shellfish habitat.” WAC 220-110-300. (Emphasis added). “No-net-loss” is defined as (a) avoidance or mitigation of adverse impacts to fish life; or (b) avoidance or mitigation of net ...

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October 31, 2005 Lee McEnery San Juan County Community Planning & Development Department 135 Rhone Street Friday Harbor, WA 98250 Re: HughesDock Permit, Pearl Island, WA, TPN 461454023; Shoreline Substantial Development Permit No. 05SJ013 Dear Lee: Friends of the San Juans respectively submits the following comments on the proposed single use dock for the Hughes property, Lot 23, Pearl Island Subdivision, TPN 461454023.We recommend denial of the substantial shoreline development permit as the proposed project is inconsistent with state law and multiple provisions of the San Juan County Shoreline Master Program. Adverse Impacts to Eelgrass The near-shore environment of the Hughes property contains thick beds of eelgrass. The application states that “there is eelgrass running along the entire coast of the project area” and “adverse impacts to eelgrass are expected.” (pg. 2, August 24, 2005, letter to Matt Zybas from Francine Shaw). Eelgrass is a saltwater habitat of “special concern,” and “serves essential functions in the developmental life history of fish or shellfish.” WAC 220-110-250.Construction of docks, ramps, floats and piers “shall incorporate mitigation measures as necessary to achieveno-net-loss of productive capacity of fish and shellfish habitat.”WAC 220-110-300. (Emphasis added).“No-net-loss” is defined as (a) avoidance or mitigation of adverse impacts to fish life; or (b) avoidance or mitigation of net loss of habitat functions necessary to sustain fish life; or (c) avoidance or mitigation of loss of area by habitat type. Mitigation to achieve no-net-loss should benefit those organisms being impacted.”WAC 220-110-020 (56). Section 18.30.160 of the San Juan County Unified Development Code (UDC), is clear in its intent to protect eelgrass as part of an environmentally sensitive area. The UDC provides increased protection for “Marine Habitat Areas” that are “Fish and Wildlife Habitat Conservation Areas.” Specifically, “all kelp and eelgrass beds,” are provided the added protection of mandatory performance standards for any proposed development in that area. These performance standards require mitigation “to the maximum extent feasible” of “any significant adverse impacts to habitat functions and values and to habitat buffers.” UDC 18.30.160.B.1.a.            !"#$"!% &' '! ()*'+*"% *' ," -$" .!/"! 
The Washington Department of Fish & Wildlife (WDFW) issued a Hydraulic Project Approval permit to the applicant for an “experimental” proposed dock design. The issuance of a Hydraulic Project Approval permit to the applicant does not ensure protection of eelgrass as required under the San Juan County UDC, Shoreline Master Program or the Washington Administrative Code. Applicants Hydraulic Project Approval permit for an experimental dock design does not constitute mitigation that achieves a “no-net-loss” of eelgrass. In a November, 1999, Hearing Examiner decision on the issue of a Hydraulic Project Approval permit for experimental dock construction over eelgrass, Mr. Dufford stated that “[i]n previous cases, influenced by general testimony about signs of marine ecosystem collapse, the Examiner has been unwilling to allow docks to be built over eelgrass.The implication of D[epartment of] F[ish and] W[ildlife]s experiments with grated decking and their establishment of post-construction monitoring programs is that no one knows for sure whether docks can be built over eelgrass with no net loss of marine habitat.” HE 33-99 (99SJ006).In a July, 2000, State Shorelines Hearings Board decision upholding Mr. Duffords November, 1999 decision, the Board stated that “[b]ased on the current state of knowledge, the proposed mitigation measures that would be applied to the dock, if constructed, appear insufficient to protect against adverse impacts to eelgrass.We commend the WDFW for studying the impact of docks on eelgrass habitat. However, the evidence causes us to conclude that the WDFW study contains significant limitations.” SHB 00-001.In that case, the applicant proposed to mitigate the adverse impacts to eelgrass by agreeing to place more than 50% penetration grading on more than 50% open space of the deck, by seasonally removing the float, and by orienting the dock in principally a north/south direction. The Board found that “the evidence in the record does not support a conclusion that these proposed mitigation measures would result in no net loss of eelgrass from this site.” SHB 00-001. The WDFWs experimental dock program is still experimental; the science behind it has not been peer reviewed and has not been adopted as policy by the WDFW. The applicants proposed dock would result in adverse impacts to eelgrass.The applicant has not submitted sufficient information that the adverse impacts to eelgrass would be properly mitigated to achieve the “no-net-loss” standard of eelgrass.Because the applicants proposed experimental dock permit will cause unmitigated loss of eelgrass it would not comply with state or local regulations protecting eelgrass and therefore must be denied. Existing Facilities/Alternate Moorage The boating facility regulations in the Shoreline Master Program (SMP), portion of the Unified Development Code (UDC), place the burden of proof on the applicant to show that alternate moorage is not adequate or feasible. SJCC 18.50.190.G.5.b.The applicant has not met its burden to prove that alternate moorage is not adequate or feasible as required by SJCC 18.50.190.G.5.c.The parcel has extensive low bank waterfront which is suitable for access with a mooring buoy, the preferred boating facility alternative under SJCC 18.50.190.C.2.In addition, the fact that the property is undeveloped and currently listed “for sale” calls into question the need for any kind of boating facility. Neither of these issues, essential to issuance of a residential dock permit, are addressed in the application. The applicant has the burden of proving that the proposed dock development is consistent with the provisions of the Shoreline Management Act.Here, however, the applicant has not met its burden of proof.
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InBellevue Farm Owners Association v. Shorelines Board,the Washington court of appeals found that the San Juan County “SMP General regulation No. 4 requires the Board to determine whether the applicant has demonstrated that existing facilities and alternative moorage are inadequate or not feasible; to make such determination, the Board must know how the dock is to be used.” 100 Wn.App. 341, 360 (2000).The Hughes property is currently undeveloped and is being actively marketed for sale, and a determination about the adequacy of alternative moorage can not be made. Because this determination can not be made, the applicant can not meet its burden of proof under the SMP and its application must be denied. Compromise to Long-term Benefits The overall goals and policies section of the (SMP) specifically states that the SMP will “foster uses which protect the potential long-term benefits to the public against compromise for reasons of short-term economic gain or convenience.” SMP 3.2.A1 and 3.4.F.3.b.The Hughes property is undeveloped and is currently listed for sale.The Hughes property is described in the attached real estate advertisement as “undeveloped….low bank waterfront….dock permit in process…with the convenience of Roche Harbor amenities right around the corner.” (Remax San Juan Island Web Site:www.sanjuanrealeastate.com). The Hughes dock application is for the sole purpose of enhancing the value of a speculative real estate sale, which is a short-term economic gain that compromises potential long-term benefits to the public of preserving the natural shorelines and therefore contradicts the goals and policies of the SMP. Furthermore, there is no indication that the purchaser of the Hughes property will want or need a dock, given the convenience of the nearby Roche Harbor amenities. Cultural Resources in the Area If approved, applicants should be required to complete a cultural assessment for the area.This assessment should focus on artifacts from the numerous local and regional native tribes. Failure to comply with any one of the above criteria should be sufficient reason for denial of this application. Toapprove this application in spite of the sum of these facts would establish a dangerous precedent. This dangerous precedent would include potential adverse impacts County-wide that would render the SMP goals of preserving “the publics opportunity to enjoy the physical and aesthetic qualities of the natural shorelines to the maximum extent feasible” virtually impossible to obtain. Recommended Action We appreciate your consideration of our comments.For the foregoing reasons, Friends respectfully recommends that the Hughes application for construction of an experimental dock design on TPN 461454023 be denied. Thank you for your time and attention to our concerns. Sincerely, Amy Trainer Legal Director
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