BILL REQ. #:  S-4274.2 

Read first time 01/16/2006.   Referred to Committee on Government Operations & Elections.

     AN ACT Relating to critical areas safe harbor agreements; and amending RCW 36.70A.172 and 36.70A.060.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 36.70A.172 and 1995 c 347 s 105 are each amended to read as follows:
     (1) In designating and protecting critical areas under this chapter, counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas. In addition, counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries.
     (2) If it determines that advice from scientific or other experts is necessary or will be of substantial assistance in reaching its decision, a growth management hearings board may retain scientific or other expert advice to assist in reviewing a petition under RCW 36.70A.290 that involves critical areas.
     (3) At any point, whether prior to or following designation or adoption actions required under this chapter, a county or city may submit to the department a notice of intent to seek approval of a critical areas safe harbor agreement that will result in equivalent or better critical area functions and values in the applicable jurisdiction, or in one or more of the critical areas listed in RCW 36.70A.030(5). Approval of a proposed critical areas safe harbor agreement under subsection (8)(a) of this section constitutes full compliance with the critical areas requirements of this chapter, including requirements under subsection (1) of this section and RCW 36.70A.060 (2) and (3).
     (4) A critical areas safe harbor development process initiated under this section must be collaborative in nature and must seek creative and locally appropriate solutions based on voluntary participation in federal, state, or local programs that offer financial incentives or other assistance to landowners and that encourage voluntary legal commitments to actions that will protect or enhance critical area functions and values.
     (5) A city or county seeking to develop a critical areas safe harbor agreement for approval must make efforts to invite participation from the following:
     (a) Local stakeholders and property owners;
     (b) The department, the department of ecology, and the department of fish and wildlife; and
     (c) Any federal, state, or local agency, or any tribal authority, with direct regulatory jurisdiction over subject matters related to the functions and values of critical areas in the jurisdiction, including agencies responsible for the regulatory protection of fish life, wildlife, aquatic resources, wetlands, water quantity, and water quality on private lands.
     (6) A proposed critical areas safe harbor agreement must include detailed descriptions of at least the following components:
     (a) Goals set for the enhancement of critical area functions and values, such as miles of riparian areas protected, acres enrolled in conservation programs, or acres committed to particular land use practices;
     (b) Pertinent information relating to social and cultural issues, economic concerns, or traditional land uses to be balanced when considering locally appropriate implementation of the goals and requirements of this chapter;
     (c) Binding legal commitments to voluntary projects or actions, whether currently in place or to be commenced by approval of a critical areas safe harbor agreement under subsection (8)(a) of this section, that will protect or enhance the functions and values of critical areas. These projects may include, but are not limited to: Riparian buffers; dedication of natural areas; conservation easements; purchase or transfer of development rights; landscape management plans; best management practices; and adaptive management strategies;
     (d) State and local programs that foster creative and locally appropriate solutions to protect or enhance the net functions and values of critical areas in the jurisdiction, including but not limited to: Clustering; mitigation banking; progress monitoring; and public sector investments;
     (e) Compliance with current legal requirements or permits that protect or enhance fish life, wildlife, aquatic resources, wetlands, water resources, or water quality; and
     (f) Pertinent agencies consulted, and regulatory and permit review processes involved, including but not limited to:
     (i) Federal review of actions under the endangered species act (16 U.S.C. Sec. 1531 et seq.);
     (ii) Federal permits required under section 404 of the federal water pollution control act (33 U.S.C. Sec. 1251 et seq.);
     (iii) State or federal review of projects under section 401 of the federal water pollution control act (33 U.S.C. Sec. 1251 et seq.); and
     (iv) Review and regulation of projects or activities related to: Water quality under chapter 90.48 RCW; shorelines under chapter 90.58 RCW; and hydraulic project approval under chapter 77.55 RCW.
     (7)(a) A city or county seeking approval of a proposed safe harbor agreement for critical areas shall send the proposed agreement to the department. Upon receipt, the department shall immediately transmit the proposed agreement to the department of ecology and the department of fish and wildlife.
     (b) Within fifteen days of receiving the proposed agreement from a city or county, the department shall publish the proposed agreement in the Washington State Register and post the agreement on its web site, and must accept public comments for sixty days from the date of publication. Comments must be considered by the department of ecology and the department of fish and wildlife, and responses from those two departments must be published on the department's web site no more than fifteen days after the closure of the public comment period. Summary responses may be provided in lieu of voluminous or repetitive comments.
     (c) The department of ecology and the department of fish and wildlife have thirty days after the close of the sixty-day public comment period to approve or deny the safe harbor agreement for critical areas as proposed by the city or county. Failure to approve or deny the agreement within the thirty-day period is deemed approval of the agreement by the department that fails to respond in a timely manner.
     (8)(a) Approval of a critical areas safe harbor agreement by both the department of fish and wildlife and the department of ecology constitutes full compliance with the critical areas requirements of this chapter. Upon approval, the department shall post the approved critical areas safe harbor agreement on its web site, and cause a notice of adoption of the approved agreement to be published in the Washington State Register.
     (b) If the request for approval of the critical areas safe harbor agreement is denied by one or both departments, the department or departments denying the request have an additional sixty days to provide the city or county specific reasons why the proposed agreement will not provide equivalent or better protection of critical area functions and values, and must provide recommendations in writing detailing changes that would result in approval. A city or county may then resubmit an amended critical areas safe harbor agreement under the procedures established in subsections (7) through (9) of this section.
     (9) A person aggrieved by a final decision to approve or deny a proposed critical areas safe harbor agreement under subsections (7) and (8) of this section has thirty days to appeal the decision to the superior court in which property or critical areas affected by the decision are located. The sole issue before the superior court is whether the decision to approve or deny the proposed agreement was clearly erroneous.

Sec. 2   RCW 36.70A.060 and 2005 c 423 s 3 are each amended to read as follows:
     (1)(a) Except as provided in RCW 36.70A.1701, each county that is required or chooses to plan under RCW 36.70A.040, and each city within such county, shall adopt development regulations on or before September 1, 1991, to assure the conservation of agricultural, forest, and mineral resource lands designated under RCW 36.70A.170. Regulations adopted under this subsection may not prohibit uses legally existing on any parcel prior to their adoption and shall remain in effect until the county or city adopts development regulations pursuant to RCW 36.70A.040. Such regulations shall assure that the use of lands adjacent to agricultural, forest, or mineral resource lands shall not interfere with the continued use, in the accustomed manner and in accordance with best management practices, of these designated lands for the production of food, agricultural products, or timber, or for the extraction of minerals.
     (b) Counties and cities shall require that all plats, short plats, development permits, and building permits issued for development activities on, or within five hundred feet of, lands designated as agricultural lands, forest lands, or mineral resource lands, contain a notice that the subject property is within or near designated agricultural lands, forest lands, or mineral resource lands on which a variety of commercial activities may occur that are not compatible with residential development for certain periods of limited duration. The notice for mineral resource lands shall also inform that an application might be made for mining-related activities, including mining, extraction, washing, crushing, stockpiling, blasting, transporting, and recycling of minerals.
     (2) Each county and city shall adopt development regulations that protect critical areas that are required to be designated under RCW 36.70A.170. For counties and cities that are required or choose to plan under RCW 36.70A.040, such development regulations shall be adopted on or before September 1, 1991. For the remainder of the counties and cities, such development regulations shall be adopted on or before March 1, 1992.
     (3) Such counties and cities shall review these designations and development regulations when adopting their comprehensive plans under RCW 36.70A.040 and implementing development regulations under RCW 36.70A.120 and may alter such designations and development regulations to insure consistency.
     (4) Approval by the department of ecology and the department of fish and wildlife of a city or county safe harbor agreement for critical areas under RCW 36.70A.172(8) constitutes compliance with the critical areas requirements of this chapter.
     (5) Forest land and agricultural land located within urban growth areas shall not be designated by a county or city as forest land or agricultural land of long-term commercial significance under RCW 36.70A.170 unless the city or county has enacted a program authorizing transfer or purchase of development rights.