BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY

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1 COUNTY COMMISSIONERS Creating Solutions for Our Future Cathy Wolfe District One Sandra Romero District Two Karen Valenzuela District Three HEARING EXAMINER BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY In the Matter of the Application of ) NO. SSDP ) Jim Brazil ) ) For Approval of a Shoreline Substantial ) FINDINGS, CONCLUSIONS, Development Permit ) AND DECISION ) SUMMARY OF DECISION A Shoreline Substantial Development for a 100-foot marine pier, ramp and float on waterfront property at 9201 Otis Beach Road NE that is within the Conservancy Shoreline Environment on Henderson Inlet in the southern Puget Sound, in Thurston County, Washington is DENIED. SUMMARY OF RECORD Request: Pursuant to the requirements of the Washington State Shoreline Management Act (SMA) (RCW 90.58) Jim Brazil (Applicant) requested approval of a Shoreline Substantial Development Permit (SSDP) for a 100-foot marine pier, ramp and float on waterfront property at 9201 Otis Beach Road NE. The property, on the west side of Johnson Point is within the Conservancy Shoreline Environment on Henderson Inlet in the southern Puget Sound, in Thurston County, Washington. 1 Hearing Date: The held an open record hearing on the request on August 3, Testimony: At the hearing the following individuals presented testimony under oath: Scott Longanecker, Associate Planner Dr. Daniel Cheney, Bioquatics International Vern Miller 1 The legal description as Section 05 Township 19 Range 1W Quarter SE NE Plat BUTTON SUBDIVISION LT 15 Document 012/028; Parcel No Although it is not stated in the legal description as set forth in the Staff Report, the property is in Thurston County, State of Washington Lakeridge Drive SW, Olympia, Washington (360) /FAX (360)

2 Jerry Sheehan Pyke Johnson Attorney Representation: Jane Futterman, Deputy Prosecuting Attorney Terry Brink Exhibits: At the hearing the following exhibits were admitted in the record: EXHIBIT 1 Resource Stewardship Department Report including the following exhibits: Attachment a Notice of Hearing Attachment b JARPA Application dated October 25, 2007 (received) Attachment c Vicinity Map Attachment d Site plan dated February 12, 2009 Attachment e Structural details of pier, ramp and float dated October 20, 2008 (received) Attachment f Photos and Aerials Attachment g SEPA Mitigated Determination of Non-Significance dated January 15, 2009 Attachment h SEPA Environmental Checklist dated October 25, 2007 (received) Attachment i Memorandum from Thurston County Development Services withdrawing Determination of Significance dated October 20, 2008 Attachment j SEPA Determination of Significance dated September 3, 2009 Attachment k Eelgrass and Macroalage Survey by BioAquatics Int. dated August 26, 2007 Attachment l Shoreline Vegetation Plan by Dr. Dan Cheney, dated February 24, 2009 Attachment m WDFW Hydraulic Project Approval dated March 30, 2009 Attachment n US Army Corps of Engineers permit modification dated May 7, 2009 Attachment o US Army Corps of Engineers permit dated February 28, 2008 Attachment p Memorandum from Jim Goode, Environmental Health Department, dated November 7, 2007 Attachment q Electronic Mail from Jeff Fancher, Deputy Prosecuting Attorney to Mike Kain and Scott Longanecker dated May 21, 2009 Attachment r Letter from Tony Kantas, TC Development Services dated December 17, 2008 Attachment s Letter from Eisenhower & Carlson PLLC dated November 18, 2008 Attachment t Letter from BioAquatics Int. LLC dated November 18, 2008 regarding TMDLs and flushing of Henderson Inlet Attachment u from Cindy Wilson, Development Services dated October 24, 2008 Attachment v from Terry L. Brink dated October 15, 2008 with attached Pierce County Determination of Nonsignificance Attachment w Letter from Marine Floats dated July 28, 2008 Brazil SSDP page 2 of 19

3 Attachment x Letter from Marine Floats dated June 13, 2008 Attachment y Letter from Squaxin Island Tribe dated April 2, 2008 Attachment z Letter from BioAquatics Int. LLC dated March 21, 2008 Attachment aa Public Comments Comment from Lon Sullivan dated March 1, 2009 SEPA comment letter from William Ide dated January 29, 2009 SEPA comment letter dated January 29, 2009 (received) and signed by twenty local individuals who are opposed to the dock project SEPA comment from Robert H. Kirchhoff PhD dated January 27, 2009 SEPA comment letter from Scott Steltzner, Fisheries Biologist with the Squaxin Tribe undated SEPA comment letter from William Ide dated December 30, from William Ide to Commissioner Diane Oberquel dated November 20, from Pyke Johnson dated November 12, 2008 Comment and letter from Williams Ide dated November 6, 2008 and received November 7, 2008 Comment letter from Gerald Sheehan dated September 20, from Scott Steltzner, Squaxin Island Tribe dated September 15, from George Walter, Squaxin Island Tribe dated September 15, 2008 Comment letter from Pyke Johnson dated September 13, 2008 Comment letter from William and Charlene Ide dated September 12, 2008 Comment letter from William Ide dated July 22, 2008 Comment letter from Williams Ide dated January 9, 2008 and received January 10, 2008 with attached Shorelines Hearings Board Appeal Comment letter from Gerald Sheehan dated January 7, 2008 Comment letter from William and Ide dated January 7, 2008 (received) Comment letter from Pyke Johnson dated January 5, 2008 Comment letter from neighboring property owners dated January 7, 2008 (received) Comment letters submitted by the Brazil s in support of the dock proposal (4 pages) received January 7, 2008 Comment letter from Robert and Ann Kirchhoff received January 3, 2008 EXHIBIT 2 August 3, 2009 Memorandum from Scott Longanecker replacing condition no. 4, page 10, exhibit 1. EXHIBIT 3 Photos of public hearing notice posting EXHIBIT 4 July 10, 2009 William Ide written public testimony EXHIBIT 5 July 22, 2009 Memorandum and recommendation from Arthur Saint to Scott Longanecker EXHIBIT 6 July 10, 2009 Neighbor petition EXHIBIT 7 July 20, 2009 Revised Shoreline Vegetation Plan Brazil SSDP page 3 of 19

4 EXHIBIT 8 July 26, 2009 Ronald Smith written public testimony EXHIBIT 9 February 10, 2009 revised site plan EXHIBIT 10 August 3, 2009 Applicant Letter of Memorandum, including the following attachments: Attachment A Project Application dated June 4, 2007 Attachment B Notice of Application issued December 18, 2007 Attachment C Notice of Public Hearing issued July 24, 2009 Attachment D Seattle District of the U.S. Army Corps of Engineers Letter of Permission dated May 7, 2009 Attachment E Hydraulic Project Approval issued March 30, 2009 Attachment F Staff Report issued July 24, 2009 Attachment G Dock Plan dated October 16, 2007; revised October 27, 2008 Attachment H Assessor s Map of Thurston County Real Property Tax Parcel No Attachment I Aerial Photo showing location of Subject Property Attachment J Site Plan dated October 16, 2007; revised July 29, 2009 Attachment K Determination of Significance issued September 3, 2008 Attachment L Appeal of Administrative Decision filed September 17, 2008 Attachment M Attachment N Attachment O Attachment P Attachment Q Attachment R Withdrawal of Determination of Significance issued October 20, 2008 Mitigated Determination of Non-Significance issued January 15, 2009 Terry L. Brink with attachments to Mr. Kantas dated February 4, 2009 Resume of Dr. Kenneth M. Brooks Environmental Response to ACZA Treated Wood Structures in a Pacific Northwest Marine Environment Study dated January 20, 2004 Anticipated Impacts to Aquatic Environments Resulting from the Use of ACZA Treated Woods Study dated July 8, 1993 Attachment S from Mr. Kantas to Terry L. Brink dated February 10, 2009 Attachment T Response from Terry L. Brink to Mr. Kantas dated February 10, 2009 Attachment U Materials provided by the Department of Health regarding Henderson Inlet Attachment V Geographical Map prepared by Department of Health Attachment W Revegetation Plan and Cost Estimate dated July 20, 2009 Attachment X Eelgrass and Macroalgae Survey prepared by BioAquatics International and dated August 26, 2007 Attachment Y Squaxin Island Tribe Response to Thurston County circa March 7, 2008 Brazil SSDP page 4 of 19

5 Attachment Z Attachment 1 Attachment 2 Attachment 3 Attachment 4 Attachment 5 Attachment 6 Attachment 7 Attachment 8 Attachment 9 Attachment 10 Attachment 11 Attachment 12 Attachment 13 Attachment 14 Attachment 15 Attachment 16 Attachment 17 Attachment 18 Attachment 19 Attachment 20 Attachment 21 Attachment 22 Attachment 23 Responsive Letter from Dr. Cheney to Thurston County dated March 21, 2008 Second letter from Squaxin Island Tribe to Thurston County dated April 2, 2008 William Ide Memorandum to Thurston County dated November 6, 2008 Responsive Letter from Dr. Cheney to Thurston County dated November 18, 2008 Response Letter from Terry L. Brink to Thurston County dated November 17, 2008 List of some of Barbara Nightingale s Writings and Co- Writings Copy of Barbara Nightingale s to Mason County dated April 6, 2007 Digital Photographs of the high bank and from the high bank of Subject Property Digital Photographs of beach and buoy in front of Subject Property Aerial Photographs obtained from Washington State Department of Ecology Washington Coastal Atlas website Button Subdivision Plat Thurston County Assessor s Map of Button Subdivision Ronald P. Smith and Deborah Hall Letters to Thurston County dated January 5, 2008 and July 26, 2009, respectively, in Support of Application Dale G. and Laurie R. Hudson Letter to Thurston County dated January 7, 2008, in Support of Application Eugene R. and Marilyn J. Andrews Letter to Thurston County dated January 5, 2008, in Support of Application Mike and Maureen Coffland Letter to Thurston County in Support of Application Dan and Susan Coleman Letter to Thurston County in Support of Application William and Sherry Reus Letter to Thurston County in Support of Application William and Marilyn Kreiner Letter to Thurston County in Support of Application Jeff Hochstein Letter to Thurston County in Support of Application Brian and Becky Midles Letter to Thurston County in Support of Application Jim and Diane Reus Letter to Thurston County in Support of Application Rex and Karen Bolin Letter to Thurston County in Support of Application Ryan and Jessie Bemsley Letter to Thurston County in Brazil SSDP page 5 of 19

6 Support of Application Attachment 24 Dan and Wendy Sandy Letter to Thurston County in Support of Application Attachment 25 Pat Gilman Letter to Thurston County in Support of Application Attachment 26 James and Tammy Brazil Letter to Thurston County dated January 5, 2008, in Support of Application Attachment 27 Map Showing Property Owners in Support of and Opposition to Application Attachment 28 Department of Natural Resources Reply to Angela Butts of Marine Floats, Inc. dated November 14, 2006, in Response to Inquiry Attachment 29 May v Robertson/Kvinsland case, SHB No Excerpt Attachment 30 Digital Photographs of Robertson/Kvinsland Property Attachment 31 Digital Photographs of Nearby Beach Areas along shoreline on either side of Applicants Property Attachment 32 Documents regarding Viafore Property Attachment 33 Drawing showing extreme low tide Attachment 34 Aerial Photographs contrasting Applicants beach area and Viafore and Robinson/Kvinsland beach area EXHIBIT 11 August 3, 2009 Applicant Table of Authorities, including the following attachments: CASES Quality Rock Products, Inc. v. Thurston County, 139 Wash. App. 125, 141 (2007) Inskeep v. San Juan County, SHB No (1999) Robertson/Kvinsland SD/CP Report and Decision, August 7, 2006 Roller and Kenney v. Pierce County and Unger, SHB No (2006) Ackerson, et al. v. King County, et al., SHB No (1996) Department of Ecology v. Snohomish County, SHB No (1987) McLean v. Pierce County and Parker, SHB No (2007) Slaughter v. San Juan County, SHB No (1997) Maranatha Mining, Inc. v. Pierce County, 59 Wash.App. 795, 804 (1990) Caminiti v. Boyle, 107 Wash.2d. 662 (1987) Parkridge v. Seattle, 89 Wash.2d 454, 573, P.2d 359 (1978) Buell v. City of Bremerton, 80 Wash.2d 518, 495 P.2d 1358 (1972) S.O.R.E. v. Snohomish County, 99 Wash.2d. 363, (1983) May v. Robertson/Kvinsland, SHB No (2007) Viafore v. Mason County, SHB No (2000) Fladseth v. Mason County, SHB. No (2007) McCauley v. Mason County, SHB No (2007) STATUTES WAC A-240 RCW WAC RCW Brazil SSDP page 6 of 19

7 EXHIBIT 12 Court of Appeals Decision Bellevue Farm Owners Association v. Washington State Shorelines Hearing Board, et al, No II, March 31, 2000 EXHIBIT 13 Thurston County s Response to Hearing Examiner s Request for a Post-Hearing Brief Regarding Hearing Examiner Authority, August 17, 2009 EXHIBIT 14 Applicant Post-Hearing Communication with Examiner, Response to William Ide s Pre-Hearing Submittal, August 17, 2009, including attachments EXHIBIT 15 Applicant Post-Hearing Communication with Examiner, Response to Bellevue Farm Owners Association v. State of Washington SHB, August 17, 2009, including attachments EXHIBIT 16 Applicant Post-Hearing Communication with Examiner, Hearing Examiner s Authority Arising from TCC 2.06 and Chaussee v Snohomish Co. Council and Use of Shorelines Hearings Boards Decisions, August 17, 2009, including attachments EXHIBIT 17 Applicant Response to Thurston County Request to Comment on Post Hearing Communication with Examiner, August 24, 2009 Based on the record developed at hearing, the following Findings and Conclusions are entered: FINDINGS 1. The Applicant requested approval of a SSDP to construct a marine pier, ramp and float (PRF). The PRF would include a 4 foot by 42 foot aluminum ramp with 100% grating, an 8 foot by 24 foot float with 50% grating and 8 steel pilings. The entire length of the recreational structure would be 100 feet and the total area would be 480 square feet of which all but 148 square feet would be grating. Grating areas would encompass 71% of the pier, 100% of the ramp and 50% of the float. The site of the construction would be at 9201 Otis Beach Road NE, Olympia, Washington, waterfront property on Henderson Inlet. Henderson Inlet is in the southern end of Puget Sound. Exhibit 1, Staff Report, pg. 1; Exhibit 10, attachment g; Testimony of Mr. Longanecker; Exhibit The 1.98 acre site is on the west side of Johnson Point in Thurston County. It is zoned Residential LAMIRD - One Dwelling Unit per Two Acres (RL 1/2). [see:thurston County Code (TCC) Chapter 20.10A Residential One dwelling unit per two acres]. Exhibit 1, Staff Report, pg. 2. The parcel is a nonconforming lot because the area is slightly less than 2 acres. However, the requested permit is consistent with RL 1/2 zoning district standards. Testimony of Mr. Longanecker. 3. The property fronts and has shoreline on the Henderson Inlet of Puget Sound. Shorelines in Thurston County are regulated through the Shoreline Master Program for the Thurston Region (SMPTR). In the SMPTR the subject property is designated as being within a Conservancy Shoreline Environment. In a Conservancy Shoreline Environment recreational piers, boat ramps, docks are permitted subject to the policies and general regulations of the SMPTR. A SSDP is required. Exhibit 1, Staff Report, Pg. 3; Testimony of Mr. Longanecker; SMPTR section III-policies and regulations for land use activities; (D) Environmental Designations and Regulations (3-Conservancy Environment)) (Pg. 55-SMPTR). Brazil SSDP page 7 of 19

8 4. Because the PRF would include construction on and over surface waters it is subject to review pursuant to the Washington State Environmental Policy Act (SEPA). Thurston County was designated as the lead agency for SEPA for the identification and review of environmental impacts resulting from the proposed project. After its initial review of documents and a SEPA checklist, Thurston County Resource Stewardship Department- Development Services Unit (Development Services) issued a Determination of Significance (DS) on September 3, Exhibit 1, attachment j. Acting on legal advice from the Thurston County Prosecuting Attorneys Office, Development Services withdrew the DS on October 20, Exhibit 1, attachment i. Subsequent to the withdrawal of the DS, Development Services issued a Mitigated Determination of Non-Significance (MDNS) on January 15, Exhibit 1, Staff Report, pg. 3; Exhibit 1, attachment g. Comments were received during the SEPA comment period, Exhibit 1, attachment aa, but no appeal of the MDNS was filed. 5. Although Development Services concluded that the proposed residential appurtenance conforms to the RL 1/2 zoning district standards, upon review of the WAC regulations it determined that the PFR is not exempt from a SSDP review. Exhibit 1, Staff Report, pg As part of the argument that the PRF is exempt from a SSDP review the Applicant cited legislative policy findings of the SMA (RCW 90.58). Included in the findings is a statement : Alterations of the natural condition of the shorelines of the state, in those limited instances when authorized, shall be given priority for single family residences and their appurtenant structures.rcw He contended that because there is no definition of appurtenant structures the guidance for allowance of a PRF is provided with the definition of Accessory Building, Structure or Use as set forth in the SMPTR. The definition is: A building, part of a building or structure, or use which is subordinate to, and the use of which is customarily incidental to that of the main building, structure or use on the same lot SMPTR Because the Applicant s use of the PRF would be for moorage and other activities it would qualify as recreation. The proposed PRF would be subordinate to and its use incidental to the Applicant s single family home and is a permitted accessory structure to a single-family dwelling. Testimony of Mr. Brink; Exhibit 10, letter, pgs. 24 and Thurston County s response to the Applicant s appurtenant exemption argument of the proposed PRF was that it is not an exempt residential appurtenance and is subject to a SSDP review pursuant to the Shoreline Act. Residential appurtenances are defined in WAC (g) and include limitation of exempt appurtenances. The WAC section reads: Brazil SSDP page 8 of 19

9 An "appurtenance" is necessarily connected to the use and enjoyment of a singlefamily residence and is located landward of the ordinary high water mark.. According to the County Staff the proposed PRF would be waterward of the ordinary high water mark and would not be exempt as an appurtenance to the single family residence on site. Testimony of Mr. Longanecker; Exhibit 1, Staff Report pg The projected cost of the project is $55,160.00, which exceeds the threshold for a SSDP. Exhibit1, attachment b, pg. 4 (JARPA application). The project is considered a substantial development that requires a SSDP. [see: RCW (3)(e)]. 9. The beach is a relatively pristine, natural, rural gravel beach that gently slopes from the high water tide waterline between 120 to 200 feet to a low tide line with a drop of approximately 16 feet. There are no docks or piers in the vicinity of this section of the beach but there are bulkheads with small recreational areas present. Exhibit 4, pg The historical use of the subject property does not include the presence of dock. Based on County records and photographs since 1992 there is no evidence of any piers, ramps, floats or dock structures within 3,000 feet of the site. Exhibit 1, Staff Report, pg. 4; Testimony of Mr. Longanecker. Submittals in opposition to the SSDP included statements that the proposed PRF structure would be 1.2 miles southeast of Johnson Point and that there are no PRFs or docks along that shoreline. In the submittals it is also claimed that there are no PRFs and docks for an additional 3.4 miles south of the proposed location. Exhibit 4, pg The property owner (William Ide) at 9213 Otis Beach Road submitted documents in opposition to the issuance of the SSDP. 2 His contentions included arguments the proposed PRF would be directly in the view of property owners south of the subject property and thereby would impact views of the Sound and mountains to the north. He further submitted that the views to the south of Henderson Inlet would be impacted. In addition he claimed that the PRF would be safety hazard to people learning to kayak, boat, swim and fish. He contended that the PRF would be a major safety hazard by forcing these activities to occur past the PRF in deeper water. Exhibit 4, pgs. 2 and 3. The Applicant did however submit letters of support of the proposed PRF. Exhibit 10, attachments Mr. Ide submitted photographs that depicted the unobstructed nature of the shoreline adjacent to his residence and in both directions on the beach. He also submitted photographs that showed uses made of the shoreline near the subject property. They included activities such as beach walking, nature excursion, swimming near the shore, snorkeling, entertaining and relaxing. He contended that these activities would be 2 While Mr. Ide submitted the most comprehensive material in opposition to the issuance of the SSDP, he was not the only opponent. Mr. Ide apparently was not able to attend the hearing but others testified. In the exhibits presented by Mr. Ide there is included an aerial photo depicting Otis Beach with lot ownership of some who are opposed. For the sake of brevity from this point on in the Findings those people who provided testimony or exhibits of evidence will simply be referred to as Opponents Brazil SSDP page 9 of 19

10 impacted because of the obstruction of the PRF that would be created on the beach and waterway. Exhibit 4, photographs. 13. Opponents submitted that the changing of the landscape on the beach that would result because of the PRF views from the beach would be impacted as would the pristine nature of the area. While the PRF might not be visible from the residences in the area it would be a prominent feature of the beach and would impact the aesthetics of the area. Testimony of Mr. Sheehan. The Applicnat submitted testimony and evidence that there are bulkheads extending on both sides of the property that protect properties and these are apparent to anyone on the water and shore. Testimony of Mr. Brink; Exhibit 10, attachment 31-photographs. 14. The Applicant argued that the regulations for Use Activities in a Conservancy Environment allow recreational piers and docks [see: SMPTR, 3. Conservancy Environment (b)(12) page 48]. He submitted that it is reasonable to conclude that the regulations allow docks in the Conservancy Environment and that the goals are to be used to implement those regulations. He put forth that the goals must be reasonable, and, that a goal which would require PRFs to be located in a position so they are not visible from the water may be impossible. He argued that in order to understand the meaning of the goal, the standard should be to locate structures and uses so they are not to a great degree visible from the water. He submitted that although this is not the exact language of the SMPTR it is practical in order to be consistent with the policy that allows PRFs. Exhibit 16, pg. 2; Testimony of Mr. Brink. 15. Opponents submitted that the tidal waters entering and leaving the mouth of the Henderson Inlet are the only source of clean saltwater that is needed to flush the Inlet, and, that any interference with the process would increase pollutants and diminish dissolved oxygen. They contended that the proposed PRF with stationary piling and float sections would be located in the tidal currents of the Inlet and would cause drag in the current that would reduce tidal flushing. It was their contention that the proposed PRF would result in a net loss of ecological functions. Exhibit 4, pg. 5; Testimony of Mr. Sheehan. More specifically the opponents claimed that that the Total Maximum Daily Load (TMDL) 3 would be increased by the PRF by impeding the tidal ebb current flow in the transport corridor of Henderson Inlet. The piling and float sections would slow the water movement and not allow the basin to flush at maximum capacity. They argued Henderson Inlet is already past it legal limit of pollutants and there is no allocation for any pollutant increases, independent of the cause. Exhibit 1, attachment aa- November 6, 2008 letter of William Ide. 16. Opponents contended that Henderson Inlet has in the past been cited by the Washington Department of Natural Resources for tidal flushing problems and point source pollutions. Allowing the proposed PFR would have at least a small impact, and more importantly 3 TDML establishes the maximum amount of a pollutant (fecal bacteria) or stressor (low dissolved oxygen) that a waterbody can assimilate and still meet water quality standards. Exhibit 10, attachment 3 Brazil SSDP page 10 of 19

11 could lead to other PFRs being allowed, which in turn would cause cumulative impacts to Henderson Inlet. Testimony of Mr. Sheehan 17. The Applicant s water quality consultant, Dr. Daniel P. Cheney, responded to the Opponents arguments with oral testimony and written documentation. He submitted that the Opponents contention that the proposed PFR would increase TMDLs directly by impeding the tidal ebb current flow in the transport corridor and thereby slowing the water movement and impeding flushing at maximum capacity is incorrect and markedly exaggerates the impact of small dock structures on water circulation. He further submitted that the TMDL...is a process to establish maximum daily, monthly, seasonal or annual loads to the waterbody and is largely driven by precipitation, and surface and groundwater runoff Exhibit 10, attachment 3, pg Dr. Cheney testified that the proposed project was in the jurisdiction of regional permit 6 of the Washington Department of Ecology (DOE) who have specific guidelines to avoid impacts to marine habitat, salmon and forage fish. Testimony of Dr. Cheney. The DOE report on the TMDL for Henderson Inlet set forth Water quality patterns and travel time results confirm that watershed sources control water quality in Henderson Inlet, and reducing tributary loads is necessary to meet marine water quality standards Exhibit 10, attachment 3, pg. 1. While some mitigation to meet these marine water quality standards would be done with revegitation of upland sites. Dr. Cheney concluded that the proposed PFR met regional permit 6 guidelines. Testimony of Dr. Cheney. 19. Dr Cheney testified that an alternative use of only floats by the Applicant rather the use of the PFR would cause greater impacts. He concluded that there would be little cumulative impacts resulting from the single project. Testimony of Dr. Cheney. 20. As part of the construction of the PFR the Applicant intends to use marine floats which use Douglas Fir lumber that is pressured treated with a product referred to as Ammoniacal Copper Zinc Arsenate (ACZA). The Applicant submitted scientific studies relating to the impact of organic loading and toxic contaminants on invertebrate communities. A study performed by Dr. Kenneth Brooks, who has bachelor and masters of science in Physics and a doctorate in Philosophy, concluded that there was no adverse effects with the use of ACZA preserved wood in the Pacific Northwest marine environments. Exhibit 10, attachment p; Exhibit 10, attachment o and q 4. The primary structure evaluated in Dr. Brooks study was in Sequim Bay, Washington in the northern reaches of Puget Sound. Exhibit 1, attachment q, pg. 2. In a separate document prepared for the Western Wood Preservers Institute Dr. Brooks concluded that based on a conservative test approach the levels of contaminants associated with the use of properly treated ACAZ wood products are below regulatory standards. Exhibit 10, attachment r. 21. Notwithstanding the Applicant s desire to use ACZA, the Development Services imposed condition 4 as part of the January 20, 2009 MDNS. Condition 4 reads: 4. Construction shall be done with non-treated wood and/or materials that will not 4 Dr. Brooks report was submitted in both attachments. Brazil SSDP page 11 of 19

12 release toxic substances into the water. Exhibit 1, attachment g. The MDNS and in particular condition 4 was not appealed by the Applicant. However on February 4, 2009, the attorney for the Applicant sent a Development Services planner an discussing the condition and alternative approaches as proposed by the Applicant. Exhibit 10, attachment O. No response to the was sent until February 10, 2009, at which time Development Services indicated that there would be no change to the condition. Exhibit 10, attachment s. After additional s between the attorney and the planner provided the Applicant with a report from the Washington State Department of Health Office of Shellfish and water Protection office in which samples of shellfish collected in Henderson Inlet are addressed. Exhibit 10, attachment U. Despite all of these communications and the data that were exchanged by the Applicant and the County no appeal of the MDNS was filed. 22. The Applicant submitted that the MDNS condition 4 should have been changed by Development Services. He further contended that the Hearing Examiner has implied discretion to consider the adequacy and appropriateness of the mitigation measure. As support for this theory the Applicant submitted the language of the Washington State Court of Appeals in the recent case of Quality Rock vs. Thurston County, 139 Wash. App. 125 (2007). Exhibit 10, pg The Applicant secured a Hydraulic Project Approval for the PFR from the Washington Department of Fish and Wildlife on March 30, Exhibit 16 attachment f. A Regional General Permit was issued by the Army Corps of Engineers on February 28, 2008 and was modified on January 29, 2009 and on May 7, Exhibit 1, attachments n and o; Exhibit 16 attachment g. 24. The Applicant argued and submitted documentation that the review of the SSDP permit should include other similar cases that have been decided by the State of Washington Shoreline Board and by Hearing Examiners in Kitsap, Mason and Pierce counties. The contention was that these administrative bodies have reviewed docks, piers and PFRs proposed to be constructed in Puget Sound and that no significant impacts to the waters and shorelines of Puget Sound have been determined. In these cases, which the Applicant argued should be used for guidance similar PFRs have been approved. Testimony of Mr. Brink; Exhibit 1, attachments w and x; Exhibit 10, pgs ; Exhibit 10, attachment The Applicant argued that the appellate courts in Washington have interpreted the state Shoreline Management Act as recognizing the right of waterfront property owners to construct docks in order to obtain recreational access to navigable waters. Referring to other administrative decisions outside Thurston County the Applicant submitted that.the construction of the PRF will allow sufficient clearance for recreational boaters to pass under the pier at higher tides and allow room to pass around the end of the float at lower tides while staying in shallow water. Exhibit 10 pg. 35. Brazil SSDP page 12 of 19

13 26. The PRF would only serve the Applicant. Testimony of Mr. Longanecker. In the Staff Report submitted by Development Services it was stated that beach and water access for one family are not balanced out with the obvious aesthetic and view impacts, and potential conflicts with public beach access, boating, fishing and recreation. Development Services also submitted that the pier, ramp, float would likely be easier to justify if it were to serve several families. Exhibit 1, Staff Report, pg Alternative boat access to the Puget Sound is available only 3,300 feet directly east of the Brazil site. In addition, floats can be used offshore. Testimony of Mr. Longanecker; Testimony of Mr. Sheehan. According to Development Services {T}he need or desire for the proposed pier, ramp, and float for single-family use does not justify the impacts, particularly when a commercial marina is so easily accessible. Exhibit 1, Staff Report, pg. 4. The Applicant indicated that the alternative is ¾ to 2 miles from the subject property and the subject shoreline could be a shoreline on which a PRF is permitted. Testimony of Mr. Brink. 28. Written notice of the public hearing was sent to all property owners within 500 feet of the site and notice was published in The Olympian on, July 24, 2009, at least ten (10) days prior to the hearing. The site was posted on July 23, 2009.Exhibit 1, Page 2; Exhibit 1, Attachment a, CONCLUSIONS Jurisdiction The Hearing Examiner is granted jurisdiction for Shoreline Substantial Development Permits pursuant to RCW Chapter 36.70, TCC (c), WAC , and Section One, Part V of the Thurston County Shoreline Master Program. RCW Criteria for Review 5 It is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses. This policy is designed to insure the development of these shorelines in a manner which, while allowing for limited reduction of rights of the public in the navigable waters, will promote and enhance the public interest. This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally public rights of navigation and corollary rights incidental thereto. 5 TCC and the County s Shoreline Master Program references WAC This section of the WAC was repealed in 1995 and replaced by WAC Brazil SSDP page 13 of 19

14 RCW Development permits -- Grounds for granting -- Administration by local government, conditions -- Applications -- Notices -- Rescission -- Approval when permit for variance or conditional use. (1) A development shall not be undertaken on the shorelines of the state unless it is consistent with the policy of this chapter and, after adoption or approval, as appropriate, the applicable guidelines, rules, or master program. (2) A substantial development shall not be undertaken on shorelines of the state without first obtaining a permit from the government entity having administrative jurisdiction under this chapter. WAC all use or development on shorelines of the state must: (1) Be consistent with the policy and provisions of the Shoreline Management Act and the master program (2) Be more than 35 feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served. Developments exempt from substantial development permit requirement. (WAC ) (1) Application and interpretation of exemptions. (a) Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the listed exemptions may be granted exemption from the substantial development permit process (g) 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 thirty-five feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to chapter 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 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 two hundred fifty cubic yards and which does not involve placement of fill in any wetland or waterward of the ordinary high water mark. Local circumstances may dictate additional interpretations of normal appurtenances which shall be set forth and regulated within the applicable master program. Construction authorized under this exemption shall be located landward of the ordinary high water mark. Brazil SSDP page 14 of 19

15 Shoreline Substantial Development Permits criteria (WAC ) (1) A shoreline substantial development permit shall be granted only when the development proposed is consistent with: (a) The policies and procedures of the Shoreline Management Act; (b) The provisions of this regulation, and (c) The applicable master program adopted or approved for the area. The Shoreline Master Program for the Thurston Region. Conclusions Based on Findings and Washington Law 1. The primary goal of the state of Washington Shoreline Management Act (SMA) is to protect at a statewide level the public s interest in the State s shorelines through a coordinated management and development process. The SMA allows all reasonable and appropriate uses of the shorelines that will promote and enhance the public interest. The SMA mandates protection against adverse effects to the public health, the land, vegetation, wildlife, waters and preserving to the greatest extent feasible the physical and aesthetic qualities of the natural shoreline. Permitted uses in the shorelines must be designed and conducted in a manner that minimize resultant damage to the ecology and environment of the shoreline area and interference with the public's use of the water. RCW Shoreline development in Washington must not only comply with SEPA, but it must also be consistent with the SMA and local governments' corresponding shoreline master programs. Overtake Fund v. Shoreline Hearings Bd., 90 Wn. App. 746, 753; RCW (1). The SMA recognizes shorelines' fragile nature, the increased demand for their use, and the necessity of a coordinated state and local effort to manage and to protect this resource. Buechel v. Department of Ecology, 125 Wn.2d 196, 203, 884 P.2d 910 (1994). Underlying this policy is the state's goal to manage shorelines "by planning for and fostering all 'reasonable and appropriate uses.' " Buechel, 125 Wn.2d at 203 (citing RCW ). The SMA is to be broadly construed in order to protect the state shorelines as fully as possible." Buechel, 125 Wn.2d at 203. Bellevue Farm Owners Association vs. Shorelines Board, 100 Wn. App. 341, 350, 351 (2000). 3. A shoreline developer must first obtain a permit from the local government, which may grant a permit only if the proposal meets both SMA and applicable local shoreline master program requirements. Buechel, 125 Wn.2d at 204 (citing RCW ; Nisqually Delta Association v. City of DuPont, 103 Wn.2d 720, 724, 696 P.2d 1222 (1985)). Bellevue Farm Owners Association vs. Shorelines Board, 100 Wn. App. 341, 351 (2000). 4. The Applicant requested approval of a SSDP to construct a marine pier, ramp and float (PRF). The PRF would include a 4 foot by 42 foot aluminum ramp with 100% grating, an 8 foot by 24 foot float with 50% grating and 8 steel pilings. The entire length of the recreational structure would be 100 feet and the total area would be 480 square feet of which all but 148 square feet would be grating. Grating areas would encompass 71% of the pier, 100% of the ramp and 50% of the float. The site of the construction would be at Brazil SSDP page 15 of 19

16 9201 Otis Beach Road NE, Olympia, Washington, which is waterfront property on Henderson Inlet. Finding of Fact No The PRF is not an exempt residential appurtenance and is subject to review pursuant to the SMA. Findings of Fact No. 7 and 8. Pursuant to the requirements of WAC (g) appurtenances must not only be connected to the use and enjoyment of a single family residence but must be located landward of the ordinary high water mark The proposed PRF would be near and over the water of Henderson Inlet but would not be landward of the ordinary high water mark. The PRF would not qualify as an exemption. Findings of Fact 5. 6 and 7. The PRF would exceed the monetary threshold amount and the location criteria necessitating shoreline review. Findings of Fact Nos. 1 and RCW establishes a general right to have a dock on the state owned shorelands: 'The abutting residential owner to state-owned shorelands, tidelands, or related beds of navigable waters, other than harbor areas, may install and maintain without charge a dock on such areas if used exclusively for private recreational purposes and the area is not subject to prior rights. However the next sentence of the statute limits the right: This permission is subject to applicable local regulation governing construction, size, and length of the dock. (emphasis added) The Applicant has not met his burden of proof that the local regulation (Thurston County) allows the proposed PRF in the Conservancy designated area. 7. Included in the legislative intent of the SMA is the following: It is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses. This policy is designed to insure the development of these shorelines in a manner which, while allowing for limited reduction of rights of the public in the navigable waters, will promote and enhance the public interest. The proposed PRF would not promote and enhance the public interest. While it would provide a benefit for the Applicant with a private dock, it would impact the enjoyment of the shoreline by others in the area. Specifically the PRF would impact kayaking and boating activities by requiring training and education for such activities to occur beyond the PRF and in deeper water than currently is required. Finding of Fact No. 12. Because of training for water activities on site the PRF would not be consistent with Conservancy general goal B(2.C) which requires an exercise in due regard for the safety of the public. SMPTR Section 2, General Goals and Policies; Subsection B. Goal Statements. Subsection 2c. The historic activities of the shoreline would be impacted because of the obstruction of the PRF that would be created on the beach and waterway. Finding of Fact No. 12. Brazil SSDP page 16 of 19

17 8. The Applicant has the burden of proof that the SSDP should be allowed for the PRF (7). In arguments in support of the issuance of the PRF the Applicant requested that the Hearing Examiner take liberal interpretations of various criteria and procedures involved in the SSDP review. The requests made of the Hearing Examiner cannot be granted because quite simply they are beyond his authority. The following arguments fail for lack of jurisdiction of the Hearing Examiner: a. The Applicant cited numerous decisions issued by the Washington State Shoreline Board and Hearing Examiners from other jurisdictions. None of these decisions provides a precedent for the instant application. Floating Homes Ass n v. Fish & Wildlife, 115 Wn. App. 780, 788, 64 P.3d 29, (2003). Each application succeeds or fails on its own merits. While the citations presented by the Applicant may be a guide they are not precedent. Each of the cited decisions involves a different section of shoreline that is not in Thurston County, different types of construction and proposals, and different shoreline master programs and local ordinances. The controlling law for the instant case is that of Thurston County. b. The Applicant suggested that at least one of the Goals and Policies of the Conservancy Environment may be incapable of being met. He submitted that Goal 5 which states, Shoreline Use. A goal is to locate structures and uses in such a position that they are not highly visible from the water is impossible to meet because any shoreline development is going to be visible from the water. He contended that because the standard not highly visible from the water cannot be achieved a different standard of not to a great degree visible from the water should be used. Finding of Fact No. 14. What the Applicant is suggesting is that the Hearing Examiner use different language and a different standard than what was enacted by the Thurston County Board of Commissioners. As noted the Examiner only has that authority given him by law. He cannot rewrite ordinances or any laws but only interpret them using the facts of each case. The Thurston County Board of Commissioners has not given him the authority to change the standards of the SMPTR or any other law of the County. While the not highly visible from the water standard is a difficult standard, it is what is required by the existing SMPTR. The Applicant has failed to meet the burden to show that the proposed PRF would not be highly visible from the water. c. A detailed summary of the SEPA process and activity was presented. Findings of Fact Nos. 4 and 21. As detailed in the Findings the Applicant desires to change MDNS condition number 4 in order to use ACZA a treatment for wood. Findings of Fact Nos. 20 and 22. The change to condition 4 is requested even though the Applicant did not file a timely appeal of the MDNS. Again the Applicant is requesting that the Hearing Examiner go beyond his jurisdictional authority and allow a change beyond that allowed by SEPA procedure of the state of Washington (RCW 43.21C) and of the County ( TCC chapter 17.09). The MDNS condition was never appealed to the Hearing Examiner by the Applicant and therefore was not before the Examiner. The Examiner cannot change or amend or Brazil SSDP page 17 of 19

18 alter or affirm any SEPA decision that has not been appealed. In Bellevue Farmers, supra, at page 352, footnote 26 the Court of Appeals stated: An agency has jurisdiction if it must issue permits or approvals for the project WAC (3) But another agency with SEPA Jurisdiction cannot change a DNS, unless it assumes lead agency status WAC 197-ll-390(2)(b). If another agency assumes lead status under WAC (1), the new lead agency can review the underlying materials and reverse the first lead agency's DNS. The new lead agency can then order preparation of an EIS. WAC (2). As the has no lead agency status and no appeal jurisdiction the SEPA decision of the lead agency and the responsible official, including condition 4, remains as stated. 9. Differing testimony was presented by the Applicants and Opponents on the water quality and pollutants that are present in Henderson Inlet and on the impact that the proposed PRF would have on the ecology and environment of the shoreline area. While the Applicant presented testimony and reports attesting to the non-existence or minimal impacts that would be caused by the PRF, most of the data was from studies of other areas and shorelines in Puget Sound. Findings of Fact Nos. 17, 18, 19 and 20. On the other hand the Opponents submitted arguments that the proposed PRF with stationary piling and float sections would be located in the tidal currents of the Inlet and would cause drag in the current that would reduce tidal flushing. It was their contention that the proposed PRF would result in a net loss of ecological functions. Findings of Fact Nos. 15 and 16. The Opponents argument appeared to be based on information provided by various state agencies. While the Hearing Examiner finds both positions plausible and supportable neither is a dispositive element of this denial. The SSDP criteria as listed and the Applicants failure to meet his burden of proof are the dispositive element of the decision. 10. One of the general goals and policies of the Conservancy Designated area is: The goal of this element is to protect, conserve and manage existing natural resources and valuable historical and cultural areas in order to ensure a continuous flow of recreational benefits to the public, and to achieve sustained resource utilization. SMPTR Section Two General Goals and Policies; B. Conservancy Environment, 7. The Opponents have demonstrated that the shoreline has a long use as being unobstructed and used for recreational benefits for the public. To place a PRF on the shoreline would disrupt this valuable historic use and continuous flow of recreational benefit. Findings of Fact Nos 11, 12 and The PRF would be a use of the shoreline that would be considered a pier or a dock and would be regulated by SMPTR, Section Three Policies and Regulations for Use Activities, Numbers For the instant request numbers 13, 14, 15, 16, 18, 20, 21, 22, and 23 are not at issue for review of the SSDP. The Applicant s design would satisfy regulation numbers 17 and 19. Finding of Fact No. 1. Notwithstanding compliance with the policies and regulation the proposed PRF would not satisfy Section Two General Goals and Policies; B. Conservancy Environment, and in particular numbers 5 and Brazil SSDP page 18 of 19

19 6, page Based on the testimony presented at the hearing and the letters of support and opposition submitted for the record, the proposed PRF is a controversial issue in the general area. While such evidence and testimony is helpful in determining historic and current use of the shoreline it is not the determinative factor for the decision. Simply put the Applicant has the burden of proof that the required laws and regulations have been satisfied and if those laws and regulations are not satisfied the SSDP cannot be issued. DECISION Based upon the preceding Findings and Conclusions the requested Shoreline Substantial Development Permit for a 100-foot marine pier, ramp and float on waterfront property at 9201 Otis Beach Road NE that is within the Conservancy Shoreline Environment on Henderson Inlet in the southern Puget Sound, in Thurston County, Washington is DENIED. Dated this 8 th day of September, 2009 \\MC1\Data\DevServ\Track\Planning\Amanda Save File\JARPA - Shoreline Substantial Development XC\Decisions\ decision.brazil.doc Brazil SSDP page 19 of 19