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07-100397 INTERNAL MEMO TO: Monica Buck, Staff Attorney FROM: Isaac Conlen, Senior Planner SUBJECT: Shoreline jurisdiction question DATE: August 13, 2007 We received an inquiry from the Washington State Department of Natural Resources regarding what type of permits would be needed to harvest geoducks from state owned tidelands along the city's marine shoreline. This question, among others prompted our investigation of the city's jurisdictional boundary along our marine shoreline. hi your June 19,2007 letter to King County you conclude that our jurisdictional boundary extends to the "extreme low water mark". I am trying to determine whether state owned tideland lie waterward or landward of the extreme low water mark, or to put it another way, whether they lie within city limits. On a side note, I can't seem to find a definition for extreme low water mark in the RCW or WAC. I noticed your letter also refers to the "extreme low tide line", which is defined in WAC 330-30-106,and RCW 90.58.030, and I'm wondering if this has the same meaning. Thanks for your help in advance. Doc.I.D. (253) 835-2562 June 19,2007 Paul McCombs Department of Development and Environmental Services SENT VIA ELECTRONIC MAIL Re: City Shoreline Boundary along Puget Sound Dear Mr. McCombs: As we discussed, please find enclosed a copy of King County Ordinance No. 8779, establishing the boundaries of the proposed City of Federal Way,as well as the City's analysis clarifying the location of the City's shoreline boundary described in the Ordinance. Please file this letter and enclosed Ordinance for future reference. I. ANALYSIS &CONCLUSION The City was created through a process that was initiated by King County Ordinance 8779. This ordinance describes the boundaries of the City. The western boundary of the City along Puget Sound is described as follows: Thence West,North, and Northwesterly along said South line of King County to its intersection with the East shore of Puget Sound; thence generally Northeasterly along the shoreline of Puget Sound to its intersection with the Northerly projection of the West margin of 1st Avenue South in the NE 1/4 Section 6,Twp.21N.,Rge 4E.,W.M.;1 Under the State Constitution, Art XVII § 1, the State has presumptive ownership of beds and shores of all navigable waters in the State up to and including the line of ordinary high tide which is also referred to as the ordinary high water mark ("OHWM").2 Cities have presumptive ownership of tidelands.3 Pursuant to RCW Chapter 79.105,tidelands and shorelands are defined as the shores between the line of ordinary high tide and the line of extreme low tide ("ELT"). The Shoreline ' See King County Ordinance No. 8779, § 5. 2 Ordinary high tide is also described at times as high tide. However the State has adopted the vegetation line as the ordinary high tide. Wash.Const.,Art.XVII, § 1 ("ordinary high tide");Borax Consolidated v. City of Los Angeles,296 U.S. 10,56 S.Ct.23,80 L.Ed.9(1935)("mean high-tide line"); United States v. State,294 F.2d 830(9th Cir.1961)("mean high tide");Spath v. Larsen,20 Wn.2d 500, 148 P.2d 834 (1944)(tidelands extend between"mean high tide"and"extreme low tide");Eisenbach v.Hatfield,2 Wash. 236,26 P. 539(1891)("ordinary high tide"); Wilson v.Howard,5 Wn.App. 169,486 P.2d 1172 1971)("mean high tide"). RCW 79.120.010 requiring streets to be platted in tidelands under the control of cities; RCW 35A.14.010 presuming annexation of included tidelands;RCW 35A.21.090 jurisdiction over tidelands(mainly as to streets). . Management Act, RCW Chapter 90.58, defines shoreline generally as the area between the OHWM and the ELT. The Shoreline Management Act does provide some commonly used definition of these terms.4 At common law, "the term `shore' includes the strip of land lying between the lines of high and low watermark."5 In the case of the City's boundaries are qualified by the word "intersection" in Ordinance No. 8779. The term intersection as used in the City's boundary description should therefore include all of the edge of the shore that is crossed by the South line of King County and 1st Avenue South. In this case the intersection is not perpendicular to the south line of King County,but an area that extends along with the line. The intersection is a part of the South line of King County that extends to the outward line of the shore thus the most reasonable interpretation of the language is that the boundary includes the shore to the low tide line. State law generally presumes that the City's boundary includes the tidelands. The King County accessor's maps show the City boundary as the extreme low tide line (or at least the meander line to approximate this). Based on the description of the shoreline boundary in King County Ordinance No. 8779, as well as the foregoing analysis,the City has concluded that the City's shoreline boundary along Puget Sound is the extreme low water mark. Please let me know if you have any questions or require additional information. Sincerely, Monica Buck City Staff Attorney City of Federal Way MAB:hvd Encl. cc: Diana Brunink,Office of Financial Management Daisy Tamayo,King County Department of Assessment Derek Drake,WSDOT Kathy McClung,Director of Community Development Greg Fewins,Deputy Director Community Development Isaac Conlen,Associate Planner K:\CD\Letter\ltr-shoreline boundary 6.19.07 4 RCW 90.58.030(2)(a)defines"Extreme low tide";RCW 90.58.030(2)(b)defines"Ordinary high water mark." 5 Wilson v. Howard,5 Wn.App. 169, 180,486 P.2d 1172(1971). Page 1 of 1 Aaron Walls - Shoreline jurisdiction From: Aaron Walls To: Isaac Conlen Date: 9/10/2007 6:01 PM Subject: Shoreline jurisdiction CC: Monica Buck; Pat Richardson I do not believe that there is a difference between the extreme low water mark and the extreme low tide line. One leading case that discusses low water, Spath v Larsen, appears to use low water mark and extreme low tide interchangeably and I can find no other way to distinguish the two terms at least as to low water. As to state owned tidelands: My understanding is that the State owns some tidelands between the OHWM and the ELTL and some tidelands have been sold into private ownership. The State owns all of the land below the ELTL which is referred to as the beds of navigable waters. The State also owns all harbor areas which may include both tidelands and beds of navigable waters. I am principally looking at RCW 79.105.060 and WAC 332- 30-106. So technically tidelands would lie within the city limits but the beds of navigable waters would not. I think you would have to look at the accessors map to determine if the State owns tidelands within the City. Let me know if I can help further. Aaron Walls Deputy City Attorney Federal Way, Washington (253)835-2571 (253)835-2569 FAX file://C:\Documents and Settings\default\Local Settings\Temp\XPgrpwise\46E5867ECHP... 9/10/2007 C7- 1�317 MEMORANDUM To: Greg Fewins From: Greg Vause Subject: Permits for Tidal Lands Date: 1-24-07 Greg Amy Kurtenbach came in today. She was looking to see what permits if any Wa DNR would need to harvest gooey ducks off our shore line. The state is planning on starting harvesting in the next 2 to 3 years. The harvested areas would be accessed by boat. Attached is a map of the area. Do you know who I should go to about this? • CITY OF CITY hL Federal I/Vay 33325 8th Avenue South Mailing Address: PO Box 9718 Federal Way, WA 98063-9718 (253)835-7000 www.cit yo ffederal wa y.corn (253) 835-2562 June 19, 2007 Paul McCombs Department of Development and Environmental Services SENT VIA ELECTRONIC MAIL Re: City Shoreline Boundary along Puget Sound Dear Mr. McCombs: As we discussed, please find enclosed a copy of King County Ordinance No. 8779, establishing the boundaries of the proposed City of Federal Way, as well as the City's analysis clarifying the location of the City's shoreline boundary described in the Ordinance. Please file this letter and enclosed Ordinance for future reference. I. ANALYSIS &CONCLUSION The City was created through a process that was initiated by King County Ordinance 8779. This ordinance describes the boundaries of the City. The western boundary of the City along Puget Sound is described as follows: Thence West, North, and Northwesterly along said South line of King County to its intersection with the East shore of Puget Sound; thence generally Northeasterly along the shoreline of Puget Sound to its intersection with the Northerly projection of the West margin of lst Avenue South in the NE 1/4 Section 6,Twp. 2IN.,Rge 4E., W.M.;1 Under the State Constitution, Art XVII § I, the State has presumptive ownership of beds and shores of all navigable waters in the State up to and including the line of ordinary high tide which is also referred to as the ordinary high water mark ("OHWM")_2 Cities have presumptive ownership of tidelands.3 Pursuant to RCW Chapter 79.105, tidelands and shorelands are defined as the shores between the line of ordinary high tide and the line of extreme low tide ("ELT"). The Shoreline See King County Ordinance No.8779, § 5. 2 Ordinary high tide is also described at tunes as high tide. However the State has adopted the vegetation hue as the ordinary high tide_ Wash. Const., Art. XVII, § 1 ("ordinary high tide"); Borax Consolidated v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9(1935)("mean high-tide line"); United States v. State, 294 F.2d 830(9th Cir.1961)("mean high tide");Spath v. Larsen, 20 Wn.2d 500, 148 P.2d 834 (1944)(tidelands extend between"mean high tide"and"extreme low tide"); Eisenbach v. Hatfield, 2 Wash. 236, 26 P. 539(1891)("ordinary high tide"); Wilson v. Howard, 5 Wn.App. 169,486 P.2d 1172 c l971)("mean high tide"). RCW 79.120.010 requiring streets to be platted in tidelands under the control of cities; RCW 35A.14.010 presuming annexation of included tidelands;RCW 35A.21.090 jurisdiction over tidelands(mainly as to streets). Management Act, RCW Chapter 90S8, defines shoreline generally as the area between the OF EWIVI and the ELT. The Shoreline Management Act does provide some commonly used definition of these terms.' At common law, "the term `shore' includes the strip of land lying between the lines of high and low watermark."' In the case of the City's boundaries are qualified by the word "intersection" in Ordinance No. 8779_ The term intersection as used in the City's boundary description should therefore include all of the edge of the shore that is crossed by the South line of King County and 1st Avenue South. In this case the intersection is not perpendicular to the south line of King County, but an area that extends along with the line. The intersection is a part of the South line of King County that extends to the outward line of the shore thus the most reasonable interpretation of the language is that the boundary includes the shore to the low tide line. State law generally presumes that the City's boundary includes the tidelands. The King County accessor's maps show the City boundary as the extreme low tide line (or at least the meander line to approximate this). Based on the description of the shoreline boundary in King County Ordinance No. 8779, as well as the foregoing analysis, the City has concluded that the City's shoreline boundary along Puget Sound is the extreme low water mark. Please let me know if you have any questions or require additional information. Sincerely, Monica Buck City Staff Attorney City of Federal Way MAB:hvd Encl. cc: Diana Brunink,Office of Financial Management Daisy Tamayo,King County Department of Assessment Derek Drake,WSDOT Kathy McClung,Director of Community Development Greg Fewins,Deputy Director Community Development Isaac Conlen,Associate Planner K:\CD\Letter\ltr-shoreline boundary 6.19:07 °RCW 90.58.030(2)(a)defines"Extreme low tide"; RCW 90.58.030(2)(6)defines"Ordinary high water mark." 5 Wilson v. Howard, 5 Wn.App. 169, 180,486 P.2d 1 172 (1971). } 6 'at 1;:4r3 ID. r ;":G 7 B a_D TEL. NJ:256---669r_ a4t:5 F'04 ; fi e.':"( �r � j is8� rodCYd h : PR!L HARDEN I i :'coDosed No . ' 6� -H13 • 3 ORDINANCE ,lo . 8779 a 1 u :)aU 1 Y_ 4 - ` Cs t3 _1 r c. ig thf, da tc r do , q e • ectian to cal:E•r»>i ne ai:ether Feierii Way �� Thal l be ir.caroar atci as a norcharter code 6 city; requesting it be held by rail . PREAMBLE : 7 i Pursuant to the provisions of Chapter 35A.03 of the Revised 1 Code of Washington , a petition for incorporation as a 8 it noncl:arter code city , si ;nen by qual flea voters resident with; n toe limits of t;le c.roposad city equal in number to ten 9 i percent of the votes cast in the proposed area at the last h preceding general state election has been presented to the 10 . 1records and elections livision . it ll - The petition for incorporation states that the form of '� government under which the proposed city will operate in the 12 ' event it is incorporated shall be Council --Manager , sets forth i the proposed boundaries of the proposed corporation . states that the name shall he the City of Fedora ! Way and trat the number of inhabitants therein as nearly as may be determined , 14 i is b6 , 100 and prays that it may be incorporated . o 16 j The superintendent of elections has determined that the 16 1 1 petition for incorporation does not violate the prohibitions contained in RCW 35A,03 . 010 with regard to number of I� inhabitants and that there are a sufficient number of valid 17 signatures on the petition . 18 1r Pursuant to the provisions of RCW 36 . 93 . 100 the Boundary l j Review Board did not invoke jurisdiction and in accordance 19 with RCW 35 . 02.039 the council held a public hearing on the 20 proposed incorporation which was concluded on December 12 , • 1988. 21 } BE IT ORbQINEd BY THE COUNCii. OF KING •COUNTY: 22 SECTION 1 . The King County council held a public hearing 23 and established the boundaries of the proposed City of Federal 24 Way as contained herein . 25 1. SECTION 2. The name of the proposed city shall be Federal \ 26 Way. 27 Section 3 . The off'cial population of the proposed City of 28 Feder, ? Way , if incorporated. snall be aooroximately 58.000_ action ExtGncec Paco 4, 1 v , n special eiec ! Iur, S,*aI I 1,-. ,.C , u v . 30 1989, within the area of the proposed City of Federal Way ,P as 3t •ihertir.lfter lescrihed , for the purpose of submitting to the 1i 32 1jqu� ll fi2cS electors the de _ermination Jf whether it shall be 33 incorporated di 4 nancnmrtor coda city , • '14.-7-- 'r] -'?L `3:3 !D KtIl •:',0 3rY_D TEL NO:296--55'9_ 11366 i 06 ,, 8779 . , , ,„ 7, „ , . 7-;?. -,ounda ?7 - f th.2 or-: ' y uf Fe.-1,?r31 uz er rer ,.;rrbed a ; l ) ous . 3 1 3eg nn ng at a point 550 feet more or less Westerly of and 50 feet southerly of the NE corner of the NE 1 /4 of Section 33 , 1 .,:', ?2N . , 4L . , W .M. ' inn rolin t 7 't Zsh iI-, r . said point I bein,i diS ;, iCer, titleis as the suk: tn r.: in .2t _ 2r ; Y,reot 4 ' ! SR 5 s; thence So t!-:e r l y S dn`.� Ct'i ',' � ini �cU r.:.CCS � � ! "e C � along cad East_rly Li:aittd acess Lire of SR 5 to i '..., 6 I! intersection with the Borth City Limits of Milton as annexed l! by City 0rdlnanca No. d10; thence Westerly and Southwesterly 7 I along said City Limits to its intersection with that area as 0 annexed to the City of Milton by City Ordinance No. 794 ; 8 thence continuing generally ;;oi,thwesteriv along said City ;; 1 `Ar ti.,tc to the �most Westerly point of said ann.exition area : 9 ;! the7lc? cont ' nuing _.cuthwesterly alcna_ the Westerly right of way mat-gin of SR 5 ( AKA the Westerly line of the area :i designated "BFauti `ication Arca" P . C. Line to ltunction SSh ND . '' 5-A, Sheet 1 of ZO) to the South line of King County ; 11 3,l ij Thence West, North , and Northwesterly along said South line of 13 !I King Col3,Ity to its intersection with the East shore of Puget 1 Sound thence generally Northeasterly along the shoreline of ;3 " Puget ' Sound to i'ts intersection with the Northerly projection M` of the' West margin of 1st Avenue South in the NE 1 ,4 Section 14 1 6 , Two, 21N. , Rge 4E . , W.M. ; thence South along said projection and West margin to its intersection with the 15 Westerly projection of the South line of Gov . Lot 4 in the NW I 1 /4 Section 5, Twp. 21 N. , Rge . 4E . , W.M. ; thence. East along 15 ! said projection and South line to the Southeast corner of Gov . 11 Lot 4 ; thence North along the East lire of Gov. Lot 4 to its 17i intersection with the Southwest boundary of the plat of Marine Hills West recorded in Volume 96 , pages 53-55 records of King 16 County; tnence Northwesterly and Northeasterly along the I Western boundary of said plat to the North line of said Gov . 19 Lot 4 ; thence East along the North line of Gov . Lot 4 to the NW corner of Lot 24 Marine Hills , No . 17 as recorded in Volume 20 98 of plats pages 50-52 records of King County ; 21 Thence East and continuing generally Northeasterly along the I North westerly boundary of said plat to the most northern 22 i point of Lot 5 ; thence Southeasterly to the most Northerly I point of Lot 76 Marine Hills East as recorded in Volume 97 23 pages 76-77 records of King County; thence Southeasterly, Northerly, Easterly , and Southerly along the boundary of said 24 plat to ,the NW corner of Tract A ( also being the SE corner of Lot 63 ) ; thence Easterly along the North line of Tract A to =S I the West margin of Redondo Way South ; thence South along said margin to the South line of the SW 1 /4 of the SE 1 /4 Section 26 i 32 , Twp . 22 N. , Rge. 4 E. , W.N. ; thence East to the East line i1 of said SW 1 /4 of the SE 1 /4 of Section 32 ; thence North along 27 said Edit line to the South margin of South 284th Street; ,I thence East along said South margin to the Kest line of the SW 28 ! 1 /4 of Section 33 , Twp. 22 N . . Rge . 4E. . ►1.M. ; MPh'-2 -'91 13: 1 ID. VING CO Ent TEL tl:296-- 69 tt4o6 P07 .. i 8779 1f Thence North along said West line to the north line of the S it 1 /2 cf said Sig 1 /4 section 33 ; thence east along said North 2 + line to the East margin of Pacific Highway South ( State Rd kl ) ; thence North along said East margin to the Soutn margin 3 of S . 272nd Street. said point being on the South line of the North 38 feet of the NW 1 /4 of said Section 33 ; thence East c I� along the Soutn 1f,ie of the North 38 feet of the NW 1 /4 of 1 Section 33 to Its intersection with that 25 foot radius curve 5 at the westerly most end of Lot 14 Redondo Heights Unrec ' d as established by AF 7312130230 records of King County 6 Washington ; thence continuing Easterly along said curve and South margin of S . 272nd Street to the most Westerly point oe 7 that area that lies 50 feet South of the North line of the NE j 1 /4 of said Section 33 as described in AF 7404160291 records 8 of King County Washington ; thence continuing East along the South line of the North 50 feet of said NE 1 /4 to the Point of 9 Beginning. 10 SECTION 6 . The notice of election shall be p<<hlfsheo as 1: ', required by law . SECTION 7 . As provided in RCW 29. 36 . 120, the King County 13 ! council requests the manager of records and election department to 14 l+ conduct the election by mail . 15 i 16 INTRODUCED AND READ for the first time this 2.4i&, day I of 0C64g,t, , 1966 . 17 ; j PASSED this 12.A., day of atrtte, , 19136. 18 I KING COUNTY COUNCIL 19 �' KING COUNTY ,. WASNINGTON 20 21 IIq 22 d ATTEST ' CHAitCt 1 23 1 24 =i rk 1 o e Councti 25 ! APPROVED this dad day of DeC�-.�J"— � 27 ZV rAll FYPciif'_1 vP Closed Geoduck I racts r-rom vvastewater ulscnarga - O ti :. „N, ._ DNR® Managed q ana ed Aquatic Lands = s age Data Sources: WDFW Geoduck Atlas 9/2004: DOH Shellfish Program 10/2005 pa VVDOE Water Quality Program 9/2005 &Toxics Cleanup Program 10/2005 E as t*(00-00~**, .. l :tJN ZONE ID LON LAT TRANSECT SAMPLES di S� 01 1 -122* 19'43.51"W 47* 22'14.09"N 01-01 A, B,C,D,E �l h 2 -122* 19'42.35"W 47* 22'0.20"N 01-02 A, B,C,D,E Y 3 -122* 19'43.24"W 47* 21'46.28"N 01-03 A, B,C,D,E PI') 4 -122* 19'39.36"W 47* 21'32.43"N 01-04 A, B,C,D, E 5 -122* 19'36.15"W 47* 21'18.5T'N 01-05 A B C D E 6 -122` 19'35.71"W 47* 21'S.59"N 01-06 A, B,C,D,E �0�� 02 7 -122* 19'42.60"W 47* 20'50.41"N 02-07 A B C D E 8 -122* 20'1.47*"W 47* 20'43.43"N 02-08 A B C D E 9 -122* 20'20.32'W 47* 20'35.71"N 02-09 A, B,C,D E 10 -122* 20'43.14"W 47* 20'32.38"N 02-10 A B C D E � ,? • 21'4.85"W 47* 20'28.69"N 02-11 A, B C,D, E `�� - m 122* -c` ti x . x- '' .r' .S . �.r-c-� '-,- ',t-�- :f.g. -.sr r .,v� °,c 'z � v� y--04`,,. 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