13.17.040 Exemption from permit requirements.
A. General. Proposals identified below and with WAC 173-27-040, as it may be amended, are exempt from obtaining a shoreline substantial development permit, provided all uses, activities and developments are subject to all standards, dimensions, and provisions of the Bothell SMP and this title.
B. Conditional Uses and Variances Not Exempt. Activities, uses, or modifications which are identified within BMC 13.07.080 as conditional uses or a request for a shoreline variance are not exempt from obtaining the appropriate approval even if an element of the activity, use or modification is exempt from obtaining a shoreline substantial development permit.
C. Prohibited Activities. Proposals that are prohibited under the provisions of Chapter 13.07 BMC shall not be allowed under an exemption.
D. Responsibility for Demonstrating Compliance. Applicants shall have the burden of proof to demonstrate that the proposal complies with the requirements for the exemption sought as described herein and under WAC 173-27-040. A proposal that does not qualify as an exemption shall be required to apply for a shoreline substantial development permit, shoreline conditional use permit, or shoreline variance.
E. Exempt Activities. WAC 173-27-040 lists activities which are exempted from the requirement to obtain a shoreline substantial development permit. This list is duplicated below with clarifications to reflect local circumstances. In all cases, should a conflict exist, the exemptions of WAC 173-27-040 shall control. The following developments shall not require substantial development permits but shall be required to comply with the applicable Bothell SMP standards and provisions:
1. Any development of which the total cost or fair market value, whichever is higher, does not exceed $7,047, if such development does not materially interfere with the normal public use of the water or shorelines of the state. The dollar threshold established in this subsection went into effect on September 2, 2017, and must be adjusted for inflation by the Office of Financial Management every five years, based upon changes in the consumer price index per WAC 173-27-040(2)(a). For purposes of determining whether or not a 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 as defined in RCW 90.58.030(2)(c). 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, including but not limited to its size, shape, configuration, location and external appearance, within a reasonable period after decay or partial destruction, except where repair causes substantial adverse effects to 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 the normal protective bulkhead common to single-family residences. A “normal protective” bulkhead includes those structural and nonstructural developments installed at or near, and parallel to, the ordinary high water mark for the sole purpose of protecting an existing single-family residence and appurtenant structures from loss or damage by erosion. A normal protective bulkhead is not exempt if constructed for the purpose of creating dry land. When a vertical or near vertical wall is being constructed or reconstructed, not more than one cubic yard of fill per one foot of wall may be used as backfill. When an existing bulkhead is being repaired by construction of a vertical wall fronting the existing wall, it shall be constructed no further waterward of the existing bulkhead than is necessary for construction of new footings. When a bulkhead has deteriorated such that an ordinary high water mark has been established by the presence and action of water landward of the bulkhead then the replacement bulkhead must be located at or near the actual ordinary high water mark. Beach nourishment and bioengineered erosion control projects may be considered a normal protective bulkhead when any structural elements are consistent with the above requirements and when the project has been approved by the Washington State Department of Fish and Wildlife;
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 this chapter. 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 obtained which would have been required, absent an emergency, pursuant to Chapter 90.58 RCW and the Bothell SMP. All emergency construction shall be consistent with the policies of Chapter 90.58 RCW and the Bothell SMP. As a general matter, flooding or other seasonal events that can be anticipated and may occur but that are not imminent are not an emergency;
5. Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on shorelands, construction of a barn or similar agricultural structure, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels; provided, that a feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the shorelands by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations;
6. Construction or modification of navigational aids such as channel markers and anchor buoys;
7. Construction on shorelands by an owner, lessee or contract purchaser of a single-family residence for their own use or for the use of their family, which residence does not exceed a height of 35 feet above average grade level and which meets all requirements of the state agency or city having jurisdiction thereof, other than requirements imposed pursuant to Chapter 90.58 RCW. “Single-family residence” means a detached dwelling designed for and occupied by one family including those structures and developments within a contiguous ownership which are a normal accessory or appurtenance. An “appurtenance” is necessarily connected to the use and enjoyment of a single-family residence and is located landward of the ordinary high water mark and the perimeter of a wetland. On a statewide basis, normal appurtenances include a garage; deck; driveway; utilities; fences; installation of a septic tank and drainfield and grading which does not exceed 250 cubic yards and which does not involve placement of fill in any wetland or waterward of the ordinary high water mark. See Chapter 13.03 BMC for a definition of normal appurtenances. Construction authorized under this exemption shall be located landward of the ordinary high water mark;
8. Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single-family and multifamily residences. A dock is a landing and moorage facility for watercraft and does not include recreational decks, storage facilities or other appurtenances. This exception applies if the fair market value of the dock does not exceed: (a) $20,000 for docks that are constructed to replace existing docks, are of equal or lesser square footage than the existing dock being replaced; or (b) $10,000 for all other docks constructed in fresh waters. However, if subsequent construction occurs within five years of completion of the prior construction, and the combined fair market value of the subsequent and prior construction exceeds the amount specified above, the subsequent construction shall be considered a substantial development for the purpose of this chapter;
9. Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored groundwater from the irrigation of lands;
10. The marking of property lines or corners on state-owned lands, when such marking does not significantly interfere with normal public use of the surface of the water;
11. Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed or utilized primarily as a part of an agricultural drainage or diking system;
12. Any project with a certification from the Governor pursuant to Chapter 80.50 RCW;
13. 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;
d. A private entity seeking development authorization under this section first posts a performance bond or provides other evidence of financial responsibility to the local jurisdiction to ensure that the site is restored to pre-existing conditions; and
e. The activity is not subject to the permit requirements of RCW 90.58.550;
14. The process of removing or controlling aquatic noxious weeds, as defined in RCW 17.26.020, through the use of an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the Department of Agriculture or the Department of Ecology jointly with other state agencies under Chapter 43.21C RCW;
15. Watershed restoration projects (WRIA 8) as defined herein. The city of Bothell shall review the projects for consistency with the SMP in an expeditious manner and shall issue an exemption along with any conditions within 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 projects as used in this section.
a. “Watershed restoration project” means a public or private project authorized by the sponsor of a watershed restoration plan that implements the plan or a part of the plan and consists of one or more of the following activities:
(1) A project that involves less than 10 miles of streamreach, in which less than 25 cubic yards of sand, gravel, or soil is removed, imported, disturbed or discharged, and in which no existing vegetation is removed except as minimally necessary to facilitate additional plantings, noxious weeds, and invasive plants;
(2) A project for the restoration of an eroded or unstable stream bank that employs the principles of bioengineering, including limited use of rock as a stabilization only at the toe of the bank, and with primary emphasis on using native vegetation to control the erosive forces of flowing water; or
(3) A project primarily designed to improve fish and wildlife habitat, remove or reduce impediments to migration of fish, or enhance the fishery resource available for use by all of the citizens of the state; provided, that any structure, other than a bridge or culvert or instream habitat enhancement structure associated with the project, is less than 200 square feet in floor area and is located above the ordinary high water mark of the stream.
b. “Watershed restoration plan” means a plan, developed or sponsored by the Department of Fish and Wildlife, the Department of Ecology, the Department of Natural Resources, the Department of Transportation, a federally recognized Indian tribe acting within and pursuant to its authority, a city, a county, the WRIA 8 Recovery Plan, or a conservation district that provides a general program and implementation measures or actions for the preservation, restoration, re-creation, or enhancement of the natural resources, character, and ecology of a stream, stream segment, drainage area, or watershed for which agency and public review has been conducted pursuant to Chapter 43.21C RCW, the State Environmental Policy Act;
16. A public or private project that is designed 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;
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 substantially consistent with the Bothell SMP. The shoreline administrator shall make such determination in a timely manner and provide it by letter to the project proponent.
Fish habitat enhancement projects that conform to the provisions of RCW 77.55.181 are determined to be consistent with the Bothell SMP, as follows:
(1) In order to receive the permit review and approval process created in this section, a fish habitat enhancement project must meet the following criteria:
(A) A fish habitat enhancement project must be a project to accomplish one or more of the following tasks:
•Elimination of human-made fish passage barriers, including culvert repair and replacement;
•Restoration of an eroded or unstable streambank employing the principle of bioengineering, including limited use of rock as a stabilization only at the toe of the bank, and with primary emphasis on using native vegetation to control the erosive forces of flowing water; or
•Placement of woody debris or other instream structures that benefit naturally reproducing fish stocks.
The Washington State Department of Fish and Wildlife shall develop size or scale threshold tests to determine if projects accomplishing any of these tasks should be evaluated under the process created in this section or under other project review and approval processes. A project proposal shall not be reviewed under the process created in this section if the department determines that the scale of the project raises concerns regarding public health and safety; and
(B) A fish habitat enhancement project must be approved in one of the following ways:
•By the Department of Fish and Wildlife pursuant to Chapter 77.95 or 77.100 RCW;
•By the sponsor of a watershed restoration plan as provided in Chapter 89.08 RCW;
•By the Department as a Department of Fish and Wildlife-sponsored fish habitat enhancement or restoration project;
•Through the review and approval process for the jobs for the environment program;
•Through the review and approval process for conservation district-sponsored projects, where the project complies with design standards established by the Conservation Commission through interagency agreement with the United States Fish and Wildlife Service and the Natural Resource Conservation Service;
•Through a formal grant program established by the Legislature or the Department of Fish and Wildlife for fish habitat enhancement or restoration; and
•Through other formal review and approval processes established by the Legislature.
(2) Fish habitat enhancement projects meeting the criteria of subsection (E)(16)(c)(1) of this section are expected to result in beneficial impacts to the environment. Decisions pertaining to fish habitat enhancement projects meeting the criteria of subsection (E)(16)(c)(1) of this section and being reviewed and approved according to the provisions of this section are not subject to the requirements of RCW 43.21C.030(2)(c).
(3) A hydraulic project approval permit is required for projects that meet the criteria of subsection (E)(16)(c)(1) of this section and are being reviewed and approved under this section. An applicant shall use a joint aquatic resource permit application form developed by the Office of Regulatory Assistance to apply for approval under this chapter. On the same day, the applicant shall provide copies of the completed application form to the Department of Fish and Wildlife and to each appropriate local government, including the city. Local governments shall accept the application as notice of the proposed project. The Department of Fish and Wildlife shall provide a 15-day comment period during which it will receive comments regarding environmental impacts. Within 45 days, the Department shall either issue a permit, with or without conditions, deny approval, or make a determination that the review and approval process created by this section is not appropriate for the proposed project. The Department shall base this determination on identification during the comment period of adverse impacts that cannot be mitigated by the conditioning of a permit. If the Department determines that the review and approval process created by this section is not appropriate for the proposed project, the Department shall notify the applicant and the appropriate local governments of its determination. The applicant may reapply for approval of the project under other review and approval processes.
(4) Any person aggrieved by the approval, denial, conditioning, or modification of a permit under this section may formally appeal the decision to the Hydraulic Appeals Board pursuant to Chapter 173-27 WAC.
d. The city of Bothell may require applicable permits and charge associated fees for fish habitat enhancement projects that meet the criteria of this subsection and that are reviewed and approved according to the provisions of this section.
17. The external or internal retrofitting of an existing structure with the exclusive purpose of compliance with the Americans with Disabilities Act of 1990 (42 USC Section 12101 et seq.) or to otherwise provide physical access to the structure by individuals with disabilities.
F. Exemptions Requiring a Letter of Exemption.
1. Certain projects conducted within or near shorelines of the state also require review and approval by federal agencies even though the activity is exempt from obtaining a permit under the Bothell SMP and the SMA. The city of Bothell shoreline administrator shall prepare a letter of exemption, addressed to the applicant and the Washington State Department of Ecology whenever a development is determined to be exempt from the substantial development permit requirements and the development is subject to one or more of the following federal permit requirements:
a. A U.S. Army Corps of Engineers Section 10 permit under the Rivers and Harbors Act of 1899 (the provisions of Section 10 of the Rivers and Harbors Act generally apply to any project occurring on or over navigable waters. Specific applicability information should be obtained from the Corps of Engineers.); or
b. A Section 404 permit under the federal Water Pollution Control Act of 1972. (The provisions of Section 404 of the federal Water Pollution Control Act generally apply to any project which may involve discharge of dredge or fill material to any water or wetland area. Specific applicability information should be obtained from the Corps of Engineers.)
2. Table 13.17.040-1 identifies the exemptions which require and do not require application for a letter of shoreline exemption. Numbers in parentheses indicate which exemption is applied.
|
Activities That Do Not Require a Letter of Shoreline ExemptionB |
Activities That Require a Letter of Shoreline ExemptionC |
|---|---|
|
Aquatic weed control (14)D |
Construction of improvements with a fair market value of $5,718 or less (1) |
|
Navigational aids (6) |
Construction of normal bulkheads (3)E |
|
Operation and maintenance of waterways (9) |
Emergency construction (application submitted after the fact if needed) (4) |
|
Marking of property lines (10) |
Docks <= $10,000 (8) |
|
Operation and maintenance of dikes and levees (11) |
Watershed restoration projects (15) |
|
Projects with certification from the Governor (12) |
Fish and wildlife restoration projects (16) |
|
Site exploration (13) |
Normal maintenance and repair of existing uses (2) |
|
Construction of a single-family residence (7) |
Maintenance of dikes and levees involving increasing the height of a levee to maintain an existing level of flood protection (BMC 13.17.040(G)) |
Table Notes:
ANumbers in parenthesis indicate the exemption number; e.g., (1) indicates exemption BMC 13.17.040(E)(1).
BThese activities do not require an application or letter of exemption, but shall comply with the city of Bothell SMP.
CThese activities require a letter of shoreline exemption from the city of Bothell before they may commence. An application shall be on the joint aquatic resources permit application form and any other application forms deemed appropriate by the administrator. Applications may be deemed complete when required forms and attachments are provided consistent with a shoreline exemption development application checklist. The applicant shall identify whether the proposal meets the requirements of WAC 173-27-050 (an application which requires a Corps of Engineers Section 10 or Section 404 approval). If so, a copy of the letter of exemption shall be filed with the Department of Ecology.
DOther state agency permits may be required.
EBulkhead construction is only exempt if the proposed bulkhead is constructed consistent with BMC 13.11.150, is located at or near the ordinary high water mark and is needed to protect an existing residence or appurtenant structure from loss or damage by erosion.
3. The letter shall indicate the specific exemption provision from WAC 173-27-040 that is being applied to the development and provide a summary of the city’s analysis of the consistency of the project with the master program and the Act.
4. The shoreline administrator may specify other developments not described within subsection E of this section as requiring a letter of exemption prior to commencement of the development.
G. Special Clarification of Exemptions Occurring within the City of Bothell. This subsection provides clarification regarding the exemptions of subsection E of this section and WAC 173-27-040:
1. Residential accessory uses or appurtenances normal to a single-family residence, referred to in Chapter 13.03 BMC as a detached dwelling unit on one lot, are included in the permit exemption provided in WAC 173-27-040(2)(g). For the purposes of interpreting this provision in the city of Bothell, normal appurtenances or accessory uses shall include home occupations, sheds, greenhouses, swimming pools, decks, spas, accessory dwelling units and other accessory structures common to a single-family residence, provided such structures are located landward of the OHWM.
2. Normal maintenance or repair of existing structures or developments, including some replacement of existing structures, is included in the permit exemption provided in WAC 173-27-040(2). For the purposes of interpreting this provision, the following normal maintenance and repair activities shall not require issuance of a shoreline substantial development permit, shoreline conditional use permit or variance:
a. Replacement of an existing hard structural shoreline stabilization measure with a soft shoreline stabilization measure consistent with the provisions contained in BMC 13.11.150.
b. Replacement of pier or dock materials consistent with the provisions contained in BMC 13.11.110.
c. Existing structural flood hazard reduction measures, such as levees, may be repaired and maintained as necessary to protect legal uses located on the landward side of such structures. Increases in height of an existing levee needed to prevent a reduction in the level of protection of existing legal structures and uses shall be considered an element of repair and maintenance. To qualify as an exemption, any expansions of the footprint of such levees shall be made to the landward side.
d. The shoreline administrator shall review the proposed exemption activity for compliance with these special local circumstances and shall require that all proposed uses and development occurring within shoreline jurisdiction conform to Chapter 90.58 RCW, the SMA, and the provisions of this title, whether or not a permit is required.
H. Application.
1. As part of any request for a letter of exemption, the applicant shall show compliance with the regulations in this title by submitting an application on a form provided by the community development department. The application shall include all documents and plans listed on the application form.
2. Exemption applications shall be deemed complete when all required forms and attachments are provided consistent with a shoreline exemption development application checklist.
3. The applicant shall identify whether the proposal requires an Army Corps of Engineers Section 10 or Section 404 approval. The shoreline administrator may waive the application for any proposal that does not require an Army Corps of Engineers Section 10 or Section 404 approval. In these circumstances, the shoreline administrator shall conduct a review for compliance with the shoreline regulations contained in this title in conjunction with a related development permit.
I. Decision. The shoreline administrator may grant, deny, or conditionally approve the shoreline exemption request. The approval or conditional approval of a letter of exemption will become conditions of approval for any related development permit, and no related development permit will be issued unless it is consistent with the letter of exemption approval or conditional approval. A copy of the city’s letter of exemption shall be filed with the Department of Ecology.
J. Appeal. Any person aggrieved by the shoreline administrator’s determination on a shoreline letter of exemption may appeal the determination consistent with the Type II permit application appeal provisions of BMC 11.04.003(B) and Chapter 11.14 BMC.
K. Lapse of Approval and Disposition of Conditions. The lapse of approval for the letter of shoreline exemption shall be the same as the expiration date of the development permit. All special conditions contained within the letter shall be included in the conditions of approval granted for the underlying development permit.
L. Revisions to WAC 173-27-040. Subsequent revisions to WAC 173-27-040, Exemptions, shall be administratively determined by the shoreline administrator as an exempt activity. This administrative determination shall be considered an administrative interpretation under BMC 13.17.070, Interpretations. (Ord. 2280 § 11, 2019; Ord. 2112 § 3 (Exh. C), 2013).