(1)
The Puget Sound shoreline is one of the most important physical features of the Tulalip Reservation to the Tulalip Tribes (“the Tribes”), its members, and non-Tribal residents. The shoreline is where many ancestral settlements and burial sites are located and where Tribal fishing, gathering, cultural activities, and recreation continue to this day.
(2)
The Tulalip Reservation includes all tide-lands within its borders. Tribal people have depended on the shoreline to such an extent that the tidelands were not allotted to individual Tribal members by the Federal government and the tide-lands, together with all of Tulalip Bay, are reserved for the use and benefit of the Tribes.
(3)
Fish and shellfish resources are of central importance to the economy, culture, subsistence, and identity of Tribal members. The right to harvest these resources is secured for the exclusive use of the Tribes under the Treaty of Point Elliott. The tidelands of the Reservation provide essential habitat and food for these Tribal resources. Protection of these tidelands is essential to preserve the use of the Reservation as a homeland for the Tulalip people and preserve its use for treaty fishing activities.
(4)
A great deal of development has occurred along the Reservation shoreline over the years. The shoreline is studded with marinas, parking lots, public buildings, houses, cabins, docks, bulkheads, and beach access stairways. Unfortunately, this development has had negative impacts on shorelines on the Reservation and throughout Puget Sound.
(5)
Water quality has decreased dramatically as pollutants make their way into Puget Sound from roads, homes, parking lots, septic systems and other forms of development. Fish populations, including salmon, herring, bottom fish, and many others, have declined. Shellfish beds have been closed for public health reasons. Tribal fish and shellfish resources and habitat have been severely degraded by the numerous bulkheads and other physical alterations to the shoreline. Docks, pilings and buoys have interfered with Tribal net fisheries. Information from the Tulalip Natural Resources Department shows that there are approximately 73 docks and piers and 124 mooring buoys along the Reservation shoreline while there are less than 15 private docks and buoys along the rest of Snohomish County’s shoreline, excluding Everett. Many of these private structures and uses are located on Tribally owned tidelands without permission or compensation to the Tribes. The Tribes and its members are increasingly prevented from gaining access to the tidelands reserved for their use.
(6)
The impacts of bulkheads are of particular concern. Their negative impacts to fish and shellfish resources and their habitat are well-documented and include:
(a)
Increased beach erosion, loss of beach sediments, and lowering of the beach due to the reflection of wave energy off of hard bulkheads back onto the beach.
(b)
“Beach starvation,” which is the loss of beach sand and sediment that occurs when bulk-heads block the supply of sediment that erodes from the bluff. The fine sediments tend to be lost, which translates into less habitat for the creatures that are prey for juvenile fish.
(c)
Loss of plants and shade, which are important to fish habitat, as bank vegetation is removed when bulkheads are built.
(7)
The environmental effects and impacts of bulkheads and supporting literature are documented in a supplemental final environmental impact statement (SFEIS) prepared by the State of Washington Department of Ecology in December 2003 for the recently adopted revisions to the State’s Shoreline Master Program Guidelines (SMPG).[1] The SFEIS contains a lengthy bibliography that includes scientific literature regarding bulkheads and their effects. The revisions to the SMPG include measures to protect against the environmental effects and impacts of bulkheads that are reflective of those contained in these policies.
(8)
Bulkheads are generally built with the intention of preventing or reducing bluff erosion on shoreline properties since many people have the perception that wave action is responsible for the erosion. The erosion and landslides are often actually due to drainage problems and soil conditions at the top of the bluff or the actions of property owners, such as the removal of trees and native vegetation. The Tulalip Tribes through its Fisheries, Community Development and Natural Resources Departments has collected reference lists on the subject of the adverse effects of bulkheads on fish and shellfish resources, on fish habitat, and on other treaty-protected rights of Tulalip Indians. In addition to being plainly observable over time, the adverse effects are clearly documented and the results of these studies are transferable to the shorelines of the Tulalip Reservation.
(9)
The Tulalip Reservation is one of the few areas in Snohomish and King Counties where there is some remaining Puget Sound shoreline that has not been modified with shoreline structures. A November 22, 2002, Seattle Post-Intelligencer article reported, based on information from the State Department of Natural Resources, that 72 percent of the shoreline in Snohomish and King Counties has been modified by the construction of bulk-heads, docks, piers, boat ramps, and boat slips. Snohomish County GIS maps show that, despite several long stretches of nearly unbroken bulk-heads, there is a substantial amount of natural beach left on the Reservation. Information from the Tribes’ Natural Resources Department indicates approximately 45 percent of the Reservation shore-line has been “armored” with bulkheads.
(10)
Although TTC § 7.24.060 regulates bulk-heads, docks, stairways, and other shoreline structures, Tribal staff has not been satisfied that it adequately addresses the impacts of shoreline development stated above. There has been ongoing demand by a number of departments to revise or expand the Tribes’ requirements. It has also been pointed out that there are a number of feasible alternatives to bulkheads including vegetation management, drainage and ground water control, replenishing scoured beaches with sand, and anchoring drift logs to the beach.
(11)
Additionally, Tribal staff has expressed concern over the need to protect Tribal property interests by requiring leases for private structures constructed on Tribal tidelands. While, in the past, Tribal tidelands were leased to private parties for a variety of uses, this practice has fallen out of use. Now there are numerous private structures located on Tribal tidelands that are not currently, or may have never been, leased from the Tribes.
(12)
In light of this situation, the Board of Directors’ Business Committee asked Tribal staff, on April 2, 2003, to prepare new policies regarding tidelands development regulation, and leases, have them reviewed by the Planning Commission, and return them to the Board for their consideration. A staff team representing the Community Development, Legal, Environmental, Fisheries, Fish and Wildlife Enforcement, Leasing, and Forestry Departments has participated in the preparation of the draft tidelands management policies presented below.
(13)
The purpose of these policies is to establish management requirements for the development regulation, and leasing of that portion of Tribally owned tidelands included within the definition of “tidelands” in TTC § 8.30.040. These policies lay the groundwork for legislative and policy reform on issues affecting Tribal tidelands. The “implementation measures” included with the policies will guide future modifications to land use controls, leasing practices, intergovernmental coordination, and the regulation, enforcement, protection and conservation of Tribal tidelands. Ultimately, the Tribes will also prepare a more detailed, comprehensive Shoreline Management Plan, regulating the use and development of the Reservation shorelines, as called for in the future implementation measures shown below.
(14)
Although Tribal tidelands are all the tidelands of the Reservation lying above the line of extreme low tide, this chapter is for the present enacted and intended to apply only to that limited portion of Tribal tidelands defined as “tidelands” in TTC § 8.30.040. Notwithstanding the foregoing definitional limitation of tidelands for the sole purposes of this chapter, no disclaimer of or waiver to the ownership and regulatory jurisdiction over the entirety of Tribal tidelands reserved in the Treaty of Point Elliott, 12 Stat. 927, and the Executive Order of December 23, 1873, is made or intended thereby nor may any such intention be inferred. Areas of Tribal tidelands shoreward of those not made subject to this chapter will be managed and regulated under a separate Tribal Shoreline Management Plan.
(Ord. 129 § 1, 3-9-2006 (Res. 2006-75 § 1 (Exh. A)))