WSR 98-15-155




[Filed July 22, 1998, 11:20 a.m.]

Subject of Possible Rule Making: Aquatic tideland and shoreland exchange rule.

Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 79.90.457, chapters 79.68, 79.66, 79.08 RCW.

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The adoption of the rule is required by RCW 79.90.457.

aquatic land exchanges: In 1971, the legislature adopted the Gissburg amendment prohibiting the sale of state owned aquatic lands to anyone but public entities. In 1995, the legislature enacted RCW 79.90.457 which gives the department authority to exchange state-owned tidelands and shorelands with private and other public landowners if the exchange is in the public interest and will actively contribute to the benefits established in RCW 79.90.455.

The statute requires the Board of Natural Resources to establish criteria for determining when an exchange is in the public interest and actively contributes to those benefits.

The department intends to present the following, subject to public comment, as critical elements of the proposed rule:

Any aquatic exchange must support long term objectives of RCW 79.90.455, which include: (1) Encouraging direct public use and access; (2) fostering water-dependent uses; (3) ensuring environmental protection; (4) utilizing renewable resources; and (5) generating revenues if consistent with the above.

Any aquatic parcel coming into state ownership must abut navigable water and must be of equal or greater value than the parcel leaving state ownership. The value of all parcels shall be determined by a qualified independent appraiser and/or economist and must include environmental cost analysis and environmental cost accounting accomplished through a methodology accepted by the department.

Any aquatic parcel coming into state ownership must meet one or more of the following conditions:

Abut an upland parcel which allows direct public use of and access to the water;

Be actively used for water-dependent uses or be capable of such use;

Contain or abut a critical and/or an essential habitat identified by the National Marine Fisheries Service, state natural resource management agency(s), and/or state approved watershed natural resource management planning group(s);

Contain an area beneficial to sediment transport and/or nearshore habitat function identified by the National Marine Fisheries Service, state natural resource management agency(s), and/or state approved watershed natural resource management planning group(s);

Contain or abut a dedicated natural resource restoration or mitigation site;

Contain property(ies) on or eligible to be on the National Register of Historic Places;

Abut a state or national wildlife refuge;

Be actively used or abut a parcel used in commercial renewable resource production (for example, commercial grade shellfish beds);

Generate or have the potential to generate higher revenues than the parcel being transferred out of state ownership in a manner consistent with the benefits listed in RCW 79.90.455.

The department shall, after its evaluation, make a recommendation to the board. When making recommendations on eligible land exchanges to the board, the department will consider:

Current and proposed uses of the exchanged lands and the impact of those uses on navigation, the diversity and health of the local economy and environment (including the production and utilization of renewable resources), the quantity and quality of public access to the water, and the treaty rights of federally recognized tribes;

The cumulative impacts of other potential exchange requests on water dependent uses, nonrenewable and renewable natural resources, and total aquatic lands acreage managed by the department;

The manageability of the land (i.e., among other elements, the department will consider whether the exchange would result in greatly increased management costs due to sediments liability issues, lack of upland access, lack of proximity to other state-owned shorelands or tidelands, or other factors).

The department will recommend shorelands and tidelands exchanges to the board for approval only when, in the department's best judgment, the public benefits associated with the exchange outweigh the negative impacts or other diminution in public benefits.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: None.

Process for Developing New Rule: Agency study.

Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication. If you have comments regarding the establishment of criteria for exchanging tidelands and shorelands that will achieve the benefits listed, please send them to Peggy Dorothy, Department of Natural Resources, P.O. Box 47000, Olympia, WA 98504-7000, fax (360) 902-1775, phone (360) 902-1119 or Lee Stilson, Department of Natural Resources, P.O. Box 47027, Olympia, WA 98504-7027, fax (360) 902-1796, phone (360) 902-1786.

July 22, 1998

Kaleen Cottingham

Deputy Commissioner

Legislature Code Reviser


Washington State Code Reviser's Office