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A. Purpose. Issuance of a letter of exemption is the mechanism by which the City administers the SMP for minor projects in a manner consistent with the policies of the SMA.

B. Letter of Exemption Required. Development described in this subsection B shall not require Shoreline Substantial Development Permits so long as it is consistent with the policy and procedures of the Shoreline Management Act, Chapter 173-27 WAC, the SMP, and applicable requirements of the BCC. Criteria for obtaining a shoreline letter of exemption are as set forth in Chapter 173-27 WAC, LUC 20.25E.150 and this section.

C. Letters of exemption from the Shoreline Substantial Development Permit requirements shall be issued for the following:

1. Any development of which the total cost or fair market value, whichever is higher, does not exceed $7,047 or as subsequently adjusted for inflation under WAC 173-27-040(2)(a), if such development does not materially interfere with the normal public use of the water or shorelines of the state. 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. 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 legally 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 a 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. Replacement of existing moorage pilings in the same location shall constitute normal repair under this subsection. Although such normal repair or replacement is exempt from the substantial development permit process, certain limitations may apply to the repair or replacement of nonconforming structures, shoreline stabilization measures and moorage. See LUC 20.25E.040 (Nonconforming shoreline conditions) and LUC 20.25E.080.E (Nonresidential Moorage Facilities, Boat Ramps, and Launches);

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. Repair or replacement meeting the terms of LUC 20.25E.080.E.5 shall be considered consistent with the terms of this subsection. Beach nourishment and bioengineered erosion control projects may be considered a normal protective bulkhead when any structural elements are consistent with the requirements of this subsection and when the project has been approved by the Department of Fish and Wildlife. See LUC 20.25E.080.F for additional provisions regarding shoreline stabilization measures;

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. The Director, or the designee thereof, shall designate when such an action constitutes an emergency action consistent with WAC 173-27-040(2)(d). Emergency construction does not include development of new permanent protective structures where none previously existed. Where new protective structures are deemed by the Director 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 which would have been required, absent an emergency, pursuant to Chapter 90.58 RCW, these regulations, or the SMP, obtained. All emergency construction shall be consistent with the policies of Chapter 90.58 RCW and the 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, and 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 or 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 existing grade. “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. Under the SMP, normal appurtenances include a garage; deck; driveway; utilities; fences; shed; raised garden bed; hot tub/spa which does not involve placement of fill in any wetland or waterward of the ordinary high water mark. 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 multiple residence(s). This exemption applies to docks that are constructed to replace existing docks, are of equal or lesser square footage than the existing dock being replaced, and the fair market value of the dock does not exceed $20,000. Construction of all other docks is exempt if the fair market value of the dock does not exceed $10,000; but if subsequent construction having a fair market value exceeding $2,500 occurs within 5 years of completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this subsection. A dock is a landing and moorage facility for watercraft and does not include recreational decks, storage facilities or other appurtenances;

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 ground water for 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 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 Chapter 173-27 WAC and the SMP, if:

a. The activity does not interfere with the normal public use of the surface waters;

b. The activity has 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 shall first post a performance bond or maintenance assurance device pursuant to LUC 20.40.490 to ensure that the site is restored to preexisting 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 a 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 as defined herein. The City shall review the projects for consistency with the SMP in an expeditious manner and shall issue its decision on the letter of exemption along with any conditions within 45 days of receiving all materials necessary to review the request for exemption from the applicant. No fee shall be charged for accepting and processing requests for exemption for watershed restoration projects as defined in this subsection C.15.

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:

i. A project that involves less than 10 miles of stream reach, 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;

ii. 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

iii. 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, 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. The City shall review the projects for consistency with the SMP in an expeditious manner and shall issue its decision on the letter of exemption along with any conditions within 45 days of receiving all materials necessary to review the request for exemption from the applicant. No fee shall be charged for accepting and processing requests for exemption for a public or private project that is designed to improve fish or wildlife habitat or fish passage when all of the following criteria have been met:

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 project is substantially consistent with the SMP as demonstrated by compliance with the requirements set forth in WAC 173-27-040(2)(p)(iii).

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 U.S.C. 12101 et seq.) or to otherwise provide physical access to the structure by individuals with disabilities. This exception will be administered under the terms of Part 20.30T LUC, Reasonable Accommodation.

D. Application and Interpretation of Exemptions.

1. Exemptions shall be construed narrowly. Only those developments that meet the precise terms of one or more of the exemptions listed in subsection C of this section may be granted exemption from the Substantial Development Permit process. If any part of a proposed development is not eligible for exemption, then a Substantial Development Permit is required for the entire proposed development project.

2. Regulatory Compliance Required. An exemption from the Substantial Development Permit process is not an exemption from compliance with the SMA, the SMP, or other City of Bellevue ordinances or permit regulations. To be authorized, all uses and developments must be consistent with the policies and provisions or the SMA and the SMP.

3. Burden of Proof. The applicant bears the burden of proof that a development or use is exempt from the Substantial Development Permit process.

4. Conditioning a Letter of Exemption. The Director may attach conditions to the letter of exemption for developments and/or uses as necessary to assure consistency of the project with the SMA, the SMP, and the BCC.

E. Effective Date. The letter of exemption is effective immediately upon final decision by the Director.

F. Commencement of Activity. Construction or activity undertaken pursuant to an effective letter of exemption is at the applicant’s own risk until the expiration of the appeals deadline to Superior Court described in LUC 20.25E.130.B. (Ord. 6416, 5-21-18, § 2)