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Exempt development

Under the SMA, certain types of developments are exempt from substantial development permit (SDP) requirements. Click below to view more information about these development types:

• Normal maintenance or repair of existing structures
• Owner-occupied single family residences and appurtenant structures
• Certain farming, irrigation, drainage and ranching activities
• Emergency construction to protect property from the elements
• Building bulkheads to protect single family residences
• Improving habitat, cleaning toxic waste, controlling weeds, or restoring watersheds
• Constructing docks designed for pleasure craft
• Site exploration and investigation activities
• Building navigation aids, marking property lines

Note: through 2009 - the SMA includes a limited exemption for transition facilities.
 

Guidance for administering exemptions

The interpretation of the exemption provisions creates more questions than any other single section of the SMA. One of the chief causes of confusion is the meaning of  "exemption." Exempt activities are not required to obtain a substantial development permit (SDP), however, exempt projects project must still comply with all development standards; i.e., setbacks and other regulations in the Shoreline Master Program.

• The burden of proof that a development or use is exempt from the permit process is on the applicant.
• Exempt activities may require Variances or Conditional Use Permits.
• Exemptions must be narrowly construed. Under state rules, "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.” [WAC 173-27-040 (1)(a)]. If there is doubt whether a project meets the precise terms of a listed exemption, then a permit is required. It may be useful to consult with Ecology staff.
• Exemptions should be in writing, and should include site plans. Exemption letters should clearly spell out what is being approved. It might be helpful to note in some cases what is not being approved in order to avoid misunderstanding or problems later. Local governments are required to send exemption letters to Ecology if federal actions are required to approve the project. Local governments are encouraged to send all exemptions to Ecology.
• Exempt activities may be conditioned.
• If any part of a proposal requires a Substantial Development Permit, an exemption should not be granted, that is, an SDP would required for the entire project.
• Activities exempt from SDP permit requirements may need other permits. One cannot legally begin to build a structure that is exempted under the SMA until all other local, state and federal permits have been obtained.
• Exemptions should be granted only after meaningful review under the State Environmental Policy Act (SEPA), unless the proposed project is categorically exempt under SEPA.
• Local administrators should beware of incremental exemptions for activities that in sum would require a permit. Activities such as clearing, grading, and preloading that typically precede development should be included in the SEPA review and shoreline permit review for a development proposal, even if the individual activities are under $5000 or, if conducted as a total project, would be otherwise exempt. The future intended use and associated design of a site should be authorized by shoreline permit prior to any grading, filling, dredging, or other shoreline modification and prior to any subdivision of a site.
• When deciding if a proposed action will be consistent with the law, consider the broad policies and the specific regulations of both the Shoreline Management Act and the local master program. The Shoreline Act includes a "liberal construction" clause that exempts the law from the rule of "strict construction." Local governments should use the permit or exemption process to assure that projects meet the fundamental policy of the Act to "minimize, insofar as practical, damage to the ecology and environment of the shoreline area and any interference with the public's use of the water" [90.58.020].

A note on SEPA categorical exemptions

SEPA categorical exemptions are not identical to the substantial development permit exemptions granted under the SMA. Many small projects will be exempt from both SEPA and the SMA's permit requirements, but this is not always true. For example, a residential structure of four dwelling units is usually categorically exempt under SEPA, but is a "substantial development." In such cases, the local government should demonstrate compliance with SEPA by attaching a statement of categorical exemption to the permit submittal package. See RCW 43.21C and WAC 197-11-305 and 197-11-800.

For more information

• Permit exemptions Focus sheet
• Shoreline Management Act: RCW 90.58.030(3)(e); 90.58.045; 90.58.147, 90.58.355 and 90.58.515 
• Note that RCW 77.55.290(4) exempts certain fish habitat enhancement projects from shoreline permit requirements.
• State rules: WAC 173-27-040.
• Relevant court case: Putnam v. Carroll, 13 Wn.App. 201, 534 P.2d 132 (1975), affirming that developments must be consistent with other applicable regulations and the policy of the Shoreline Management Act of 1971 in order to qualify for a permit exemption.

For specific information about a city or county permit process, visit the Local Planning Page and click on the map, or contact a shoreline specialist at the appropriate Ecology regional office.

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