Background:

Growth Management Act - Introduction.

The Growth Management Act (GMA or Act) is the comprehensive land use planning framework for county and city governments in Washington. Enacted in 1990 and 1991, the GMA establishes numerous requirements for local governments obligated by mandate or choice to fully plan under the Act (planning jurisdictions) and a reduced number of directives for all other counties and cities. Twenty-nine of Washington's 39 counties, and the cities within those counties, are planning jurisdictions.

Directives applying to all counties and cities require the designation and protection of critical areas, a term defined in statute to include the following areas and ecosystems:

wetlands;
areas with a critical recharging effect on aquifers used for potable water;
fish and wildlife habitat conservation areas;
frequently flooded areas; and
geologically hazardous areas.

The protection of critical areas is accomplished through mandatory development regulations enacted by counties and cities. These development regulations are often referred to as "critical area ordinances."

Comprehensive Land Use Plans, Development Regulations, and Selected Elements.

The GMA directs planning jurisdictions to adopt internally consistent comprehensive land use plans that are generalized, coordinated land use policy statements of the governing body. Comprehensive plans must address specified planning elements, each of which is a subset of a comprehensive plan. The implementation of comprehensive plans occurs through development regulations mandated by the GMA.

Planning Goals.

The GMA establishes 14 planning goals in a non-prioritized list that must be used exclusively for guiding the development and adoption of comprehensive plans and development regulations. Examples of planning goals include the following:

urban growth - encourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner;
transportation - encourage efficient multimodal transportation systems that are based on regional priorities and coordinated with county and city comprehensive plans; and
environment - protect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water.

Shoreline Management Act.

The Shoreline Management Act (SMA) governs uses of state shorelines. The SMA enunciates state policy to provide for shoreline management by planning for and fostering "all reasonable and appropriate uses." The SMA prioritizes public shoreline access and enjoyment, and creates preference criteria, listed in prioritized order, that must be used by state and local governments in regulating shoreline uses.

The SMA involves a cooperative regulatory approach between local governments and the state. At the local level, the SMA regulations are developed in local shoreline master programs (master programs). All counties and cities with shorelines of the state, a term defined in the SMA, are required to adopt master programs that regulate land use activities in shoreline areas of the state. Counties and cities are also required to enforce master programs within their jurisdictions. Master programs must be consistent with guidelines adopted by the Department of Ecology (DOE), and the programs, and segments of or amendments to, become effective when approved by the DOE.

The DOE must approve the segment of a master program relating to critical areas if the master program segment is consistent with specific requirements of the SMA and applicable shoreline guidelines, and if the segment provides a level of protection of critical areas that is at least equal to that provided by the local government's adopted and amended critical areas ordinances.

Policy Integration.

In 1995 the Legislature enacted environmental regulatory reform legislation that implemented recommendations of the Governor's Task Force on Regulatory Reform. The legislation added the goals and policies of the SMA as an additional goal to the 13 planning goals of the GMA. The legislation also specified that the goals and policies of a master program required by the SMA were deemed an element of a planning jurisdiction's comprehensive plan.

2003 Legislation.

Legislation adopted in 2003 (i.e., ESHB 1933, enacted as chapter 321, Laws of 2003) in response to a 2003 decision of the Central Puget Sound Growth Management Hearings Board, established new provisions pertaining to the jurisdiction, implementation, and partial integration of the GMA and the SMA. Among other provisions, the legislation specified that as of the date the DOE approves a local government's master program adopted under applicable shoreline guidelines, the protection of critical areas within shorelines of the state must be accomplished only through the local government's master program and, with limited exceptions, must not be subject to the procedural and substantive requirements of the GMA.

The 2003 legislation also specified that critical areas within shorelines of the state that have been identified as meeting the definition of critical areas and are subject to a master program adopted under applicable shoreline guidelines must not be subject to the procedural and substantive requirements of the GMA. Limited exceptions to this directive were established in ESHB 1933.

Furthermore, ESHB 1933 specified that master programs must provide a level of protection to critical areas located within shorelines of the state that is at least equal to the level of protection provided to critical areas by the local government's adopted and amended critical area ordinances.

Recent Supreme Court Action.

On July 31, 2008, the Washington Supreme Court (Supreme Court) ruled in Futurewise v.Western Washington Growth Management Hearings Board, 164 Wn.2d 242; 189 P.3d 161, that a superior court erred when it reversed a decision of the Western Washington Growth Management Hearings Board and held that the GMA controls procedures inside shorelines until new SMA plans are formulated and approved.

In its 2008 trial court reversal, the Supreme Court held that the provision of ESHB 1933 specifying that as of the date the DOE approves a local government's master program adopted under applicable shoreline guidelines, the protection of critical areas within shorelines of the state must be accomplished only through the local government's master program, is curative and immediate, not prospective. The Supreme Court further held that a prospective interpretation of ESHB 1933 would change the effective date of the ESHB 1933 from July 27, 2003, to a much later date based upon the DOE's processing and approving of master programs, and that a prospective interpretation would, in part, contradict the clear language and intent of the Legislature in ESHB 1933.

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Summary of Bill:

As of the date the DOE approves a local government's master program adopted or updated under shoreline guidelines effective on or after January 17, 1994, the protection of critical areas that are wetlands or fish and wildlife habitat conservation areas located within shorelines of the state must be accomplished only through the local government's master program. These wetlands and habitat conservation areas, except in limited circumstances, are not subject to the procedural and substantive requirements of the GMA.

Adopted master programs must provide a level of protection to wetlands and fish and wildlife habitat conservation areas located within shorelines of the state that assures no net loss of shoreline ecological functions necessary to sustain shoreline natural resources as defined by guidelines of the DOE that are effective on or after January 17, 2004.

The DOE must approve the segment of a master program relating to critical areas that are wetlands or fish and wildlife habitat conservation areas if:

the master program segment is consistent with specific requirements of the SMA and applicable shoreline guidelines; and
the segment provides a level of protection to these critical areas that assures no net loss of shoreline ecological functions necessary to sustain shoreline natural resources as defined in administrative code requirements pertaining to master programs.

As of the date the DOE approves a local government's master program, or segment of the local government's master program relating to wetlands and fish and wildlife habitat conservation areas, adopted or updated under shoreline guidelines effective on or after January 17, 2004, the protection of critical areas that are wetlands and fish and wildlife habitat conservation areas that are also located within shorelines of the state may only be accomplished through the local government's master program.

Staff Summary of Public Testimony:

(In support) This bill addresses the SMA, the land use regulations that the DOE is responsible for, and the GMA, the land use regulations that the Department of Community, Trade and Economic Development (DCTED) is responsible for. There are three reasons for bringing this bill forward: (1) there is confusion over which regulations apply in shoreline areas, and this needs to be resolved; (2) habitat protection - many shoreline regulations are old, but critical area ordinances are new and offer great protections; and (3) local governments are already engaged in updating their master programs. This bill doesn't affect the relationship between agricultural activities and critical area ordinances. The July 2008 decision of the Supreme Court put 178 legally adopted critical area ordinances into question. The goal of this legislation is to ensure that critical area ordinances apply until old master programs are updated. This bill seeks to establish clarity and certainty. Substitute language is being developed.

The state hasn't integrated the GMA and the SMA effectively; they are different acts with different structures. Merging the concepts and critical area ordinances with shoreline area requirements is difficult. Water dependent uses must be protected and critical area ordinances play a role in doing so. This bill is trying to clarify how the handoff between the GMA and the SMA works and is a good faith effort to untangle the jurisdiction of those acts.

The City of Anacortes has been involved in the drafting of this bill and supports the current language, but will work to carefully craft a substitute. The Supreme Court decision should not be overturned. This bill allows us to move forward, not backward. King County has old master programs that are not adequate to protect shorelines, but it has updated critical area ordinances. Requests are being made to evaluate permit applications under the master programs. This bill is an attempt to return to the provisions of ESHB 1933 and to add clarity to that bill. This bill divides the jurisdiction of the GMA and the SMA accurately. This bill came to you because of the City of Anacortes. The city thought it was doing the right thing, but it became entangled in legal issues. Updates required by the SMA are underway. Cities cannot afford to have confusion about shoreline jurisdiction issues. Words that are added to heavily litigated laws matter and should be very clear.

The Supreme Court decision was a plurality with differing opinions. This bill doesn't impose new requirements, but rather it aligns the law with current practices and interpretations of the past six years. The stakeholder group that worked on ESHB 1933 had a clear and common intent. That group did not get the wording correct, so this is an attempt to remedy the wording.

(Opposed) Concerns exist about unintended consequences and how this bill might affect non-conforming uses. The business community is continuing to work with the DOE on this bill. Jefferson County uses habitat buffers. Some buffer requirements are flexible, but others are 'no-build' zones. In Jefferson County, proposed development projects in Port Hadlock and Pleasant Harbor are governed by the SMA. This bill will lock out those projects and lock in prohibitive regulations. A 'safe-harbor' provision, drafted with ports and the DCTED, would be a good addition to this bill. Does the Legislature intend to stop development and redevelopment in shoreline areas through buffer requirements? This legislation is unnecessary: the Supreme Court decision was clear and should be left intact. The Supreme Court stated that critical areas in shoreline areas are governed by the SMA and all others are governed by the GMA. This bill, as written, may invoke buffer requirements under the GMA that affect agricultural operations. The agricultural community is willing to work with the DOE on this bill.