AN ACT Relating to the protection of ocean and coastal resources; amending RCW 90.58.160, 43.21F.045, and 90.58.030; adding a new chapter to Title 43 RCW; adding a new section to chapter 90.58 RCW; creating a new section; and making an appropriation.

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

NEW SECTION. Sec. 1. TITLE. This chapter may be known and cited as the "ocean resources protection act of 1989."

NEW SECTION. Sec. 2. LEGISLATIVE FINDINGS. The legislature finds that:

(1) The shorelines of the state, including Washington coastal waters and seabed, are among the most valuable and fragile of its natural resources, and that there is great concern throughout the state relating to their utilization, protection, restoration, and preservation.

(2) The state of Washington has primary jurisdiction over the coastal and ocean natural resources within three miles of its coastline. From three miles seaward to the boundary of the two hundred mile exclusive economic zone, the United States federal government has claimed jurisdiction lines. Since development, conservation, and protection of the natural resources in the exclusive economic zone directly affects Washington's economy and environment, the state has an inherent interest in how these resources are managed.

(3) The health of the ocean is essential to life on Earth. The ocean produces oxygen, protein, water, and renewable and nonrenewable resources, and serves as a marine highway for world commerce. In addition, the coastline is renowned for its beauty and ruggedness, and millions of visitors a year travel to the coast for recreation on its beaches. The waters and seabed also provide a living marine laboratory important for an understanding of Washington's environment.

(4) The use of the oceans for incineration or disposal of hazardous waste and solid waste, except as otherwise authorized by law, and for extraction of fossil fuels and minerals threatens irreparable damage to the ocean ecosystems.

(5) Continued use of fossil fuels, including those which might be found off the Washington coast, contribute to the global warming crisis.

(6) Our national economic security requires a transition from fossil fuel dependency to energy efficiency, conservation, and renewable energy options.

(7) Energy conservation is more cost-effective and is an environmentally protective source of new energy than extraction of nonrenewable resources from coastal waters and the seabed.

NEW SECTION. Sec. 3. LEGISLATIVE POLICY AND INTENT. (1) It is the intent of the legislature to protect against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and its aquatic life.

(2) The legislature declares that the interest of all of the people shall be paramount and that the public's opportunity to enjoy the physical and aesthetic qualities of Washington's coastal resources shall be preserved.

(3) Our state's economy depends in large part on the health and survival of the ocean's renewable resources. Fishing, aquaculture, tourism, and marine transportation provide a vital source of employment for coastal residents. In using these coastal resources, however, the state must protect coastal and ocean ecosystems and their ability to support sustainable marine life.

(4) It is the policy of the state of Washington to utilize measures designed to conserve at least an amount of liquid fuels that is equivalent to the estimate by the federal minerals management service of the recoverable oil reserves on federal outer continental shelf lands off the Washington coast.

NEW SECTION. Sec. 4. DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter:

(1) "Coastal counties" means Clallam, Jefferson, San Juan, Island, Grays Harbor, Pacific, and Wahkiakum counties.

(2) "Coastal waters" means the water of the Columbia River from Puget Island west to Cape Disappointment; the Pacific Ocean seaward from Cape Disappointment north to Cape Flattery; and the Strait of Juan de Fuca from Cape Flattery to Point Partridge (Island county).

NEW SECTION. Sec. 5. SHORELINE MASTER PLAN REVIEW. (1) The department of ecology shall prepare and adopt coastal zone guidelines to be used in reviewing, and where appropriate, amending shoreline master programs of local governments with coastal waters or coastal shorelines within their boundaries. These guidelines shall address the following:

(a) Siting criteria for oil and gas pipelines, navigational and harbor modifications for oil transport, port facilities, other onshore support facilities, and other types of mineral extraction activity.

(b) Recommendations for addressing other offshore resource and pollution issues.

(2) There shall be no approval of licenses or permits for facilities referred to in this section until finalization of these coastal zone guidelines.

(3) After the department of ecology has adopted the guidelines required in subsection (1) of this section, counties, cities, and towns with coastal waters or coastal shorelines shall review their shoreline master programs to ensure that the programs conform with subsection (1) of this section. Amended master programs shall be submitted to the department of ecology for its approval.

(4) To the extent available, the department of ecology shall use federal grant funds to supplement the general fund appropriation.

Sec. 6. Section 16, chapter 286, Laws of 1971 ex. sess. and RCW 90.58.160 are each amended to read as follows:

Surface drilling for oil or gas ((is)) and incineration or disposal of hazardous waste and solid waste are prohibited in the waters of Puget Sound north to the Canadian boundary and the Strait of Juan de Fuca seaward from the ordinary high water mark and on all lands within one thousand feet landward from said mark; the Pacific Ocean seaward from Cape Flattery south to Cape Disappointment from the ordinary high water mark and on all lands within one thousand feet landward from said mark; and the waters of the Columbia River from Puget Island west to Cape Disappointment from the ordinary high water mark and on all lands within one thousand feet landward from said mark.

Sec. 7. Section 4, chapter 295, Laws of 1981 as amended by section 29, chapter 505, Laws of 1987 and RCW 43.21F.045 are each amended to read as follows:

The energy office shall have the following duties:

(1) The office shall prepare and update contingency plans for implementation in the event of energy shortages or emergencies. The plans shall conform to chapter 43.21G RCW and shall include procedures for determining when these shortages or emergencies exist, the state officers and agencies to participate in the determination, and actions to be taken by various agencies and officers of state government in order to reduce hardship and maintain the general welfare during these emergencies. The office shall coordinate the activities undertaken pursuant to ((~~the [this]~~)) this subsection with other persons. The components of plans that require legislation for their implementation shall be presented to the legislature in the form of proposed legislation at the earliest practicable date. The office shall report to the governor and the legislature on probable, imminent, and existing energy shortages, and shall administer energy allocation and curtailment programs in accordance with chapter 43.21G RCW.

(2) The office shall establish and maintain a central repository in state government for collection of existing data on energy resources, including:

(a) Supply, demand, costs, utilization technology, projections, and forecasts;

(b) Comparative costs of alternative energy sources, uses, and applications; and

(c) Inventory data on energy research projects in the state conducted under public and/or private auspices, and the results thereof.

(3) The office shall coordinate federal energy programs appropriate for state-level implementation, carry out such energy programs as are assigned to it by the governor or the legislature, and monitor federally funded local energy programs as required by federal or state regulations.

(4) The office shall develop energy policy recommendations for consideration by the governor and the legislature.

(5) The office shall provide assistance, space, and other support as may be necessary for the activities of the state's two representatives to the Pacific northwest electric power and conservation planning council. To the extent consistent with federal law, the office shall request that Washington's council members request the administrator of the Bonneville power administration to reimburse the state for the expenses associated with the support as provided in the Pacific northwest electric power planning and conservation act (P.L. 96-501).

(6) The office shall cooperate with state agencies, other governmental units, and private interests on energy matters.

(7) The office shall represent the interests of the state in the siting, construction, and operation of nuclear waste storage and disposal facilities.

(8) The office shall serve as the official state agency responsible for coordination of energy-related activities.

(9) No later than December 1, 1982, and by December 1st of each even-numbered year thereafter, the office shall prepare and transmit to the governor and the legislature a report on energy supply and demand, conservation, and other factors as appropriate.

(10) The office shall prepare and transmit to the governor, no later than twelve months from the effective date of this act, a report on the liquid fuel supply and demand including but not limited to:

(a) An estimate of the potential savings in liquid fuels through conservation and fleet conversion;

(b) An estimate of the potential savings in liquid fuels through an increase in the gas tax;

(c) An outline of an achievable liquid fuels conservation program designed to conserve the equivalent estimate by the federal minerals management service of the recoverable oil reserves on federal outer continental shelf lands off the Washington coast.

(11) The office shall provide support for increasing cost-effective energy conservation, including assisting in the removal of impediments to timely implementation.

((~~(11)~~)) (12) The office shall provide support for the development of cost-effective energy resources including assisting in the removal of impediments to timely construction.

((~~(12)~~)) (13) The office shall adopt rules, under chapter ((~~34.04~~)) 34.05 RCW, necessary to carry out the powers and duties enumerated in this chapter.

Sec. 8. Section 3, chapter 286, Laws of 1971 ex. sess. as last amended by section 1, chapter 474, Laws of 1987 and RCW 90.58.030 are each amended to read as follows:

As used in this chapter, unless the context otherwise requires, the following definitions and concepts apply:

(1) Administration:

(a) "Department" means the department of ecology;

(b) "Director" means the director of the department of ecology;

(c) "Local government" means any county, incorporated city, or town which contains within its boundaries any lands or waters subject to this chapter;

(d) "Person" means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or agency of the state or local governmental unit however designated;

(e) "Hearing board" means the shoreline hearings board established by this chapter.

(2) Geographical:

(a) "Extreme low tide" means the lowest line on the land reached by a receding tide;

(b) "Ordinary high water mark" on all lakes, streams, and tidal water is that mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the department: PROVIDED, That in any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining salt water shall be the line of mean higher high tide and the ordinary high water mark adjoining fresh water shall be the line of mean high water;

(c) "Shorelines of the state" are the total of all "shorelines" and "shorelines of state-wide significance" within the state;

(d) "Shorelines" means all of the water areas of the state, including reservoirs, and their associated wetlands, together with the lands underlying them; except (i) shorelines of state-wide significance; (ii) shorelines on segments of streams upstream of a point where the mean annual flow is twenty cubic feet per second or less and the wetlands associated with such upstream segments; and (iii) shorelines on lakes less than twenty acres in size and wetlands associated with such small lakes;

(e) "Shorelines of state-wide significance" means the following shorelines of the state:

(i) The area between the ordinary high water mark and the western boundary of the state from Cape Disappointment on the south to Cape Flattery on the north, including harbors, bays, estuaries, and inlets;

(ii) Those areas of Puget Sound and adjacent salt waters and the Strait of Juan de Fuca between the ordinary high water mark and the line of extreme low tide as follows:

(A) Nisqually Delta‑-from DeWolf Bight to Tatsolo Point,

(B) Birch Bay‑-from Point Whitehorn to Birch Point,

(D) Skagit Bay and adjacent area‑-from Brown Point to Yokeko Point, and

(E) Padilla Bay‑-from March Point to William Point;

(iii) Those areas of Puget Sound and the Strait of Juan de Fuca and adjacent salt waters north to the Canadian line and lying seaward from the line of extreme low tide;

(iv) Those lakes, whether natural, artificial, or a combination thereof, with a surface acreage of one thousand acres or more measured at the ordinary high water mark;

(v) Those natural rivers or segments thereof as follows:

(A) Any west of the crest of the Cascade range downstream of a point where the mean annual flow is measured at one thousand cubic feet per second or more,

(B) Any east of the crest of the Cascade range downstream of a point where the annual flow is measured at two hundred cubic feet per second or more, or those portions of rivers east of the crest of the Cascade range downstream from the first three hundred square miles of drainage area, whichever is longer;

(vi) Those wetlands associated with (i), (ii), (iv), and (v) of this subsection (2)(e);

(f) "Wetlands" or "wetland areas" means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all marshes, bogs, swamps, and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology: PROVIDED, That any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom;

(g) "Floodway" means those portions of the area of a river valley lying streamward from the outer limits of a watercourse upon which flood waters are carried during periods of flooding that occur with reasonable regularity, although not necessarily annually, said floodway being identified, under normal condition, by changes in surface soil conditions or changes in types or quality of vegetative ground cover condition. The floodway shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state;

(h) "Dispose or disposal" means the discarding or abandoning of hazardous wastes or the treatment, decontamination, or recycling of such wastes once they have been discarded or abandoned;

(i) "Incineration" means reducing the volume or toxicity of wastes by use of an enclosed device using controlled flame combustion.

(3) Procedural terms:

(a) "Guidelines" means those standards adopted to implement the policy of this chapter for regulation of use of the shorelines of the state prior to adoption of master programs. Such standards shall also provide criteria to local governments and the department in developing master programs;

(b) "Master program" shall mean the comprehensive use plan for a described area, and the use regulations together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals, and standards developed in accordance with the policies enunciated in RCW 90.58.020;

(c) "State master program" is the cumulative total of all master programs approved or adopted by the department of ecology;

(d) "Development" means a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this chapter at any state of water level;

(e) "Substantial development" shall mean any development of which the total cost or fair market value exceeds two thousand five hundred dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state; except that the following shall not be considered substantial developments for the purpose of this chapter:

(i) Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements;

(ii) Construction of the normal protective bulkhead common to single family residences;

(iii) Emergency construction necessary to protect property from damage by the elements;

(iv) Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on wetlands, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels: PROVIDED, That a feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the wetlands by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations;

(v) Construction or modification of navigational aids such as channel markers and anchor buoys;

(vi) Construction on wetlands by an owner, lessee, or contract purchaser of a single family residence for his own use or for the use of his family, which residence does not exceed a height of thirty-five feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this chapter;

(vii) Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single and multiple family residences, the cost of which does not exceed two thousand five hundred dollars;

(viii) Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water for the irrigation of lands;

(ix) The marking of property lines or corners on state owned lands, when such marking does not significantly interfere with normal public use of the surface of the water;

(x) Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed, or utilized primarily as a part of an agricultural drainage or diking system;

(xi) Any action commenced prior to December 31, 1982, pertaining to (A) the restoration of interim transportation services as may be necessary as a consequence of the destruction of the Hood Canal bridge, including, but not limited to, improvements to highways, development of park and ride facilities, and development of ferry terminal facilities until a new or reconstructed Hood Canal bridge is open to traffic; and (B) the reconstruction of a permanent bridge at the site of the original Hood Canal bridge.

NEW SECTION. Sec. 9. Sections 1 through 5 of this act shall constitute a new chapter in Title 43 RCW.

NEW SECTION. Sec. 10. A new section is added to chapter 90.58 RCW to read as follows:

CONSISTENCY. The department of ecology shall consult with affected state agencies, local governments, Indian tribes, and the public prior to responding to federal coastal zone management consistency certifications for uses and activities occurring on the federal outer continental shelf.

NEW SECTION. Sec. 11. Captions as used in this act constitute no part of the law.

NEW SECTION. Sec. 12. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 13. The sum of one hundred fifty thousand dollars, or as much thereof as may be necessary, is appropriated for the biennium ending June 30, 1991, from the general fund to the department of ecology to be distributed to local governments for the purpose of reviewing and amending their shoreline master programs.