BEFORE THE SAN JUAN COUNTY HEARING EXAMINER FINDINGS, CONCLUSIONS AND DECISION Applicant: Emarali LLC P. O. Box 271 Hoquiam, WA 98550-0271 Agent: Bob Querry P. O. Box 2573 Friday Harbor, WA 98250 File No: HE 05-06 (05SJ015) Request: Shoreline Substantial Development Permit Location: North end of Ram Island, located between Center Island and Sperry Peninsula. Summary of Proposal: To construct a single-use dock on a small undeveloped island. Land Use Designation: Conservancy Public Hearing: After reviewing the report of Community Development and Planning, the Hearing Examiner conducted a public hearing on February 9, 2006. Applicable Law: RCW 90.58.020 – Shoreline Act policies SJCC 18.50.190 – Boating Facilities SJCC 18.30.160(B) – Habitat Protection Standards SJCC 18.80.110(H) – Substantial Development criteria Decision: The application is denied. 1 FINDINGS OF FACT 1. Emerali LLC (applicant) seeks a permit for a single user dock on the north end of Ram Island, a small undeveloped islet lying off the southern tip of Decatur Island, between Center Island and Sperry Peninsula on Lopez Island. It is the most southerly of the island chain of Rim, Rum and Ram. 2. The island includes two Tax Parcels numbered 140512001 and 153243001. The size of the island is approximately 8.8 acres. It is long and narrow, in the main flanked by near vertical cliffs. There is a lower area on the southeast side which may be accessible by a landing barge. 3. There is no residence on the site and there are no specific plans to build. Nonetheless, the idea for the dock is, at least in p art, to provide a platform for bringing in building materials when a house is built. The island is currently for sale. 4. The east side of the island lies on Lopez Pass and is subject to strong curren ts. The west side of the island lies on Lopez Sound which is quieter. The proposed dock site at the north tip of the island and projecting northwest would take advantage of somewhat calmer water conditions than found along the east coast of the island. 5. The proposed dock would be 84 feet long and cover 500 square feet. A 5’ x 7’ on-shore landing would connect to a 4’ x 55’ ramp, leading to a 6’ x14’ landing float, capped by an 8’ by 20’ mooring float placed perpendicular to the rest of the structure. The floats would be held in place by four 8-inch steel pilings. 6. A portion of the ramp would be above the Ordinary High Water Mark (OHWM). The dock would extend only about 70 feet seaward of the OHWM. Nonetheless, the drop off is steep enough that the mooring float would be ov er subtidal substrate and would not ground. 7 . The outer float would cover a bed of laminaria, a variety of kelp. There is no eelgrass in the immediate vicinity. The mooring float would have grating with at least 60% open area. The grating would be 5’ x 16’ or 50% of the area of the float. 8 . The State Department of Fish and Wildlife issued a Hydraulic Project Approval (HPA) for the dock on December 12, 2005. A condition of the HPA is that eelgrass and kelp should not be adversely impacted due to any project activities. This condition appears to refer to activities during the construction phase. 9 . The applicant introduced evidence to show that it has complied with the requirements for a Regional General Permit for a residential overwater structure from the United States Army Corps of Engineers. 1 0 . Kelp beds are designated as Marine Habitat Areas within the Environmentally Sensit ive Areas Overlay District. The regulations call for mitigation to 2 the “maximum extent feasible” of any “ significant ” impacts to the functions and values of such habitats and their buffers. See SJCC 18.30.160(B)(1). The regulations for marine habitats require that the location and design of structures and activities must “minimize obstruction of light in the habitat area.” SJCC 18.30.160(B)(2)(b). 11. T he proposed grating to be installed on the float clearly represents an a ttempt to mitigate impacts and minimize light obstruction. This method has not been proven effective, but it does meet the requirements of the HPA and of the Corps permit. 12. T here is nothing in the record to indicate of any consideration of avoiding impacts by relocating the dock. 1 3 . Ram island has neither ferry service nor air access. The island has no roa ds. It is not served by electricity. There is no developed water source. Advertising for sale of the island suggests use of a electrical generator and pursuing altern ative means for acquiring water – such as, drilling a well, creating a catchment system or installing a desalination unit. No soil investigations have been conducted for the feasibility of a septic system. 1 4 . In short , the viability of a residence on the island has not been shown. Moreover, it is not clear what the environmental ramifications of building a house might ultimately be. The Friday Harbor Laboratories pointed out the following: The justification for the dock is construction of a house. I have no information on the water supply on Ram Island. If a residence depends on a desalination plant, then those impacts accompany the dock construction. If brine is discharged from a desalination plant, the brine is likely to flow downward along the bottom. Ram Island is next to an enclosed basin in Lopez Sound in which brine could accumulate. More saline water is denser, can pool at the bottom, resists mixing, and becomes anaerobic, killing most multicellular organisms. A local example of such a basin with anaerobic bottom water (that is a natural result of a salinity gradient) is Saanich Inlet. 1 5 . The applicant says it is willing to accept a condition that the dock permit will not become effective until a building permit for a house has been issued. The reason for this, however, has nothing to do with resolving environmental issues about the house. It is rather because the Shoreline Master Program’ s dimensional limits for dock s give standards for “a dock associated with a single family residence,” for a “joint-use dock associated with two-single family residences,” and for “a joint-use community dock associated with more than two single family residences.” See SJCC 18.50.190(G)(2). This language has given rise to an interpretation that “associated” residences should be in existence or imminent before a dock is approved. 1 6 . The record discloses only that the lot is for sale. There is no indication that the construction of a house is imminent. 3 1 7 . There is no basis for thinking that this dock would itself adversely affect water quality or water circulation. Impacts on littoral drift or navigation are unlikely. Public access to this private property is not an issue. 1 8 . The proposed dock would be the first dock on an island with no docks. It would be visible from Lopez and Center Islands. It would, however, be a small dock and colored to blend with the background. The visual impacts would be very modest. 1 9 . The Staff Report suggest that use of a mooring buoy is a viable alternative to the dock. It says the bay on the southeast side of the island could serve as a dinghy access and that a trail could be developed to the home site. The applicant asserts that use of a mooring buoy for access to the island is not practical because dinghy access to the southeast end of the island would not provide reasonable access to a residence. According to the applicant the only feasible building site is a small level area at the north end of the island. There is, the applicant says, a sharp rocky spine running the length of the island that prevents creation of a reasonable walking path from the south to the north end. 20 . On a non-ferry served island with no roads or airport, access to a residence from a mooring buoy can be difficult and dangerous for bringing in household supplies. A buoy serving a landing on the east side of the island would be subject to currents that could prove treacherous. Moreover, obliging the homeowners to trudge with their loads over most of the length of the island and up and down its spine after landing their dinghy stretches the concept of reasonableness. 21 . A Determination on Non-Significance (DNS) under the State Environmental Policy Act was issued for this dock proposal on December 7, 2005. The DNS was not appealed. There were no public comments on this proposal. 22. Any conclusion herein which may be deemed a finding are hereby adopted as such. CONCLUSIONS OF LAW 1. The Hearing Examiner has jurisdiction over the persons and the subject matter of this proceeding. SJCC 18.80.110(E). 2. The requirements of SEPA have been met. 3. Docks are allowed in Conservancy shoreline environments, subject to the policies and regulations of the local Shoreline Master Program (SMP). 4. The criteria for granting a Shoreline Substantial Development Permit are contained in SJCC 18.80.110(H). The applicant has the burden to prove that the proposal is: 4 1. Consistent with the policies of the Shoreline Management Act and its implementing regulations, Chapter 90.58. RCW and Chapter 173-27 WAC, as amended; 2. Consistent with the policies and regulations of the Shoreline Master Program in Chapter 18.50 SJCC; 3.