WSR 98-19-108

PROPOSED RULES

DEPARTMENT OF

NATURAL RESOURCES

[Order 98-640--Filed September 23, 1998, 8:55 a.m.]



Original Notice.

Preproposal statement of inquiry was filed as WSR 98-15-155.

Title of Rule: Aquatic tideland and shoreland exchange.

Purpose: To establish criteria for determining when to exchange aquatic tidelands and shorelands, and to implement the requirements of RCW 79.90.457.

Statutory Authority for Adoption: RCW 79.90.457, 43.30.150(2).

Statute Being Implemented: RCW 79.90.457.

Summary: 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.

Reasons Supporting Proposal: The statute requires the Board of Natural Resources to establish criteria in rule for determining when an exchange is in the public interest and actively contributes to the benefits established in RCW 79.90.455.

Name of Agency Personnel Responsible for Drafting: Lee Stilson, Natural Resources Building, Olympia, Washington 98504, (360) 902-1786; Implementation and Enforcement: Maria Victoria Peeler, Natural Resources Building, Olympia, Washington 98504, (360) 902-1100.

Name of Proponent: Department of Natural Resources, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rule on the exchange of state-owned tidelands and shorelands with private and other public landowners states that the Department of Natural Resources may consider the parcel to be conveyed into state-ownership to be eligible if:

(1) The economic value is greater than or equal to the parcel passing out of state ownership. The economic value must be determined by a qualified independent appraiser and/or economist and must include Environmental Cost Analysis and Environmental Cost Accounting; and

(2) It abuts navigable water; and

(3) It meets one or more of the following conditions. It must:

(a) Abut an upland parcel with a formalized agreement allowing direct public access to the water;

(b) Be or abut parcel(s) actively used for water-dependent uses or would allow such use;

(c) Be or abut a GMA critical area.

(d) Be or abut a critical and/or an essential habitat and/or actively contribute to critical or essential habitat functions (including sediment transport) as identified by the National Marine Fisheries Service, state natural resource management agency(s), and/or state approved watershed natural resource management group(s);

(e) Contain an historic or archaeological property listed on or eligible to be listed on the National Register of Historic Places.

(f) Abut a state or national wildlife refuge;

(g) Be actively used or abut a parcel used in the commercial production of food or fibre or other renewable resource production (for example, commercial grade beds of shellfish and aquaculture facilities); or

(h) 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.

An eligible property will then be evaluated according to the following criteria:

(a) The proposed uses of the exchanged lands and the impact of those uses on:

(i) Navigation;

(ii) The diversity and health of the local economy;

(iii) The diversity and health of the local environment including the production and utilization of renewable resources;

(iv) The quantity and quality of public access to the waterfront; and

(v) Treaty rights of federally recognized tribes;

(b) The cumulative impacts of similar exchanges or proposed uses on water dependent uses, and natural resources;

(c) The precedent setting effect on other areas;

(d) Consistency with plans and development guidelines of public ports, counties, cities, and other local, state, and federal agencies;

(e) The manageability of the land, i.e., if 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;

(f) Hazardous waste and contaminated sediments liability issues; and

(g) The cumulative impacts of similar exchanges on water dependent uses, nonrenewable and renewable natural resources, and total aquatic lands acreage managed by the department.

An exchange would only be approved when, in the department's best judgment, the public benefits associated with the exchange clearly outweighs the negative impacts or other diminution in public benefits.

Land exchanges carried out under these rules are to: (1) Be in the public interest; (2) actively ensure environmental protection, foster water dependent uses, encourage direct public access to state-owned aquatic lands, promote utilization of renewable resources, and generate revenue if consistent with the other benefits.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule does not require small businesses to comply with it and imposes no direct costs to them. The proposed rule establishes criteria that the Department of Natural Resources must follow in exchanging state-owned tidelands and shorelands.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption. The department considers this rule as a significant legislative rule under the guidelines of chapter 34.05 RCW, Administrative Procedure Act.

Hearing Location: Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA 98504, on November 3, 1998, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Linda Heckel, Board Secretary, (360) 902-1020, TDD (360) 902-1125.

Submit Written Comments to: Lee Stilson, P.O. Box 47027, Olympia, WA 98504-7027, fax (360) 902-1796, by November 3, 1998.

Date of Intended Adoption: December 1, 1998.

September 22, 1998

Paul A. Silver

Deputy Supervisor

OTS-2352.2

NEW SECTION



WAC 332-30-170  Tideland and shoreland exchange. The department will use this rule when it considers exchanging tidelands and shorelands with private individuals or public entities. The department of natural resources may 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 public benefits established in RCW 79.90.455. Those benefits are: Encouraging direct public use and access; fostering water-dependent uses; ensuring environmental protection; utilizing renewable resources; and generating revenue in a manner consistent with these benefits.

The department may exchange tidelands and shorelands if the parcel to be conveyed into state ownership meets the eligibility criteria in subsection (1) of this section. The department may not exchange state-owned harbor areas or waterways.

(1) Eligibility criteria. The department may exchange ownership of tidelands or shorelands with private and other public landowners.

(a) The economic values of the parcels must be equal or the exchange must result in a net economic gain to the state. The economic value must 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.

(b) The parcel to be conveyed into state ownership must abut navigable water.

(c) The parcel to be conveyed into state ownership must meet one or more of the following conditions. It must:

(i) Abut an upland parcel with public upland ownership, easements, or other formalized agreement that would allow direct public use of and access to the water;

(ii) Be actively used or abut parcel(s) actively used for water-dependent uses or would allow such use;

(iii) Be or abut a critical area identified by jurisdictions under chapter 36.70A RCW;

(iv) Be 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);

(v) Be 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);

(vi) Contain a historic or archaeological property listed on or eligible to be listed on the National Register of Historic Places;

(vii) Abut a state or national wildlife refuge;

(viii) Be actively used or abut a parcel used in the commercial production of food or fibre or other renewable resource production (for example, commercial grade beds of shellfish and aquaculture facilities); or

(ix) 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.

(2) Evaluation criteria. The department will evaluate eligible proposed exchanges according to the following criteria. When making recommendations on land exchanges to the board of natural resources the department must consider:

(a) The proposed uses of the exchanged lands and the impact of those uses on:

(i) Navigation;

(ii) The diversity and health of the local economy;

(iii) The diversity and health of the local environment including the production and utilization of renewable resources;

(iv) The quantity and quality of public access to the waterfront; and

(v) Treaty rights of federally recognized tribes;

(b) The cumulative impacts of similar exchanges or proposed uses on water dependent uses, and natural resources;

(c) The precedent setting effect on other areas;

(d) Consistency with plans and development guidelines of public ports, counties, cities, and other local, state, and federal agencies;

(e) The manageability of the land, i.e., if 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;

(f) Hazardous waste and contaminated sediments liability issues; and

(g) The cumulative impacts of similar exchanges on water dependent uses, nonrenewable and renewable natural resources, and total aquatic lands acreage managed by the department.

(3) Conflicts among public benefits. In addition to considering the enhanced public benefits that may be associated with a proposed exchange, the department must also consider any associated negative impacts to public benefits and resources, including impacts affecting the management of state resources. In general, an exchange should only be approved when, in the department's best judgment, the public benefits associated with the exchange outweigh the negative impacts or other diminution in public benefits.



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