WSR 05-11-067

PROPOSED RULES

DEPARTMENT OF

NATURAL RESOURCES

[ Filed May 17, 2005, 3:02 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-06-098.

Title of Rule and Other Identifying Information: WAC 332-30-151 Reserves (RCW 79.68.060).

Hearing Location(s): Tacoma Public Library, 1102 Tacoma Avenue South, Tacoma, WA 98402, on June 21, 2005, at 7:00 p.m.; or at the Bellingham Public Library, 210 Central Avenue, Bellingham, WA 98225, on June 22, 2005, at 7:00 p.m.

Date of Intended Adoption: July 5, 2005.

Submit Written Comments to: Matt Niles, 1111 Washington Street S.E., P.O. Box 47027, Olympia, WA 98504-7027, e-mail matthew.niles@wadnr.gov, fax (360) 902-1786, by June 24, 2005.

Assistance for Persons with Disabilities: Contact Matt Niles by June 24, 2005, TTY (360) 902-1125.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to amend WAC 332-30-151 in order to provide a more clearly defined method of managing aquatic reserves in Washington state. The proposal will clarify the existing rule and describe in more detail the process used by the Department of Natural Resources (DNR) to manage aquatic reserves.

Reasons Supporting Proposal: DNR is directed by the Revised Code of Washington to manage state-owned aquatic lands to provide a balance of public benefits that include encouraging public access, fostering water-dependent use, ensuring environmental protection, utilizing renewable resources, and generating revenue when consistent with these other benefits. The management guidelines for aquatic reserves contained in WAC 332-30-151 provide general direction to the DNR for managing aquatic reserves, but the existing rule lacks the specificity needed for effective reserve management. Amending the rule to provide additional clarity as to how the DNR will manage uses that may impact aquatic reserves will help ensure the consistent implementation of DNR's aquatic reserves management program.

Statutory Authority for Adoption: RCW 79.10.210.

Statute Being Implemented: RCW 79.10.210.

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

Name of Proponent: Washington Department of Natural Resources, Aquatic Resources Division, governmental.

Name of Agency Personnel Responsible for Drafting: Matt Niles, 1111 Washington Street S.E., Olympia, WA 98504-7027, (360) 902-1100; Implementation: David Palazzi, 1111 Washington Street S.E., Olympia, WA 98504-7027, (360) 902-1100; and Enforcement: Loren Stern, 1111 Washington Street S.E., Olympia, WA 98504-7027, (360) 902-1100.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Pursuant to RCW 19.85.025, a small business economic impact statement is not required because the proposed rule is described in RCW 34.05.310(4), as follows: (1) The rule relates only to internal governmental operations that are not subject to violation by a nongovernmental party; and (2) the rule only clarifies the language of the existing rule without changing its effect.

A cost-benefit analysis is not required under RCW 34.05.328. Pursuant to RCW 34.05.328, a cost-benefit analysis is not required for the proposed rule because the proposed rule relates only to internal governmental operations that are not subject to violation by a nongovernmental party and only clarifies the language of the existing rule without changing its effect.

May 17, 2005

Doug Sutherland

Commissioner of

Public Lands


AMENDATORY SECTION(Amending Order 343, filed 7/3/80)

WAC 332-30-151   ((Reserves (RCW 79.68.060).)) Reserves.   (1) Types of reserves: Educational, environmental, scientific - see definitions (WAC 332-30-106).

(2) Aquatic lands of special educational ((or)), scientific ((interest)), or ((aquatic lands of special)) environmental importance ((threatened by degradation shall)) will be considered for reserve status. ((Leases for activities in conflict with reserve status shall not be issued.))

(3) The department or other governmental, public, or private entity or institution may nominate specific areas for consideration for reserve status.

(4) Such nominations will be reviewed and accepted or rejected by the commissioner of public lands based upon the following criteria:

(a) The site will accomplish the purpose as stated for each reserve type.

(b) The designation of the site will ((not conflict)) be consistent with other current or projected uses of the ((area. If it does,)) area as determined by local, state, and federal plans, including, but not limited to, those adopted pursuant to the Growth Management Act and the Shoreline Management Act. If it is not, then a determination must be made by the commissioner of public lands as to which use best serves the public benefit.

(c) Management of the reserve can be effectively accomplished by either the department's management program or by assignment to another ((governmental agency or institution.)) entity.

(5) The department's reserves management program ((consists of prevention of conflicting)) seeks to ensure consistent land use activities ((in or near the reserve through lease actions. In those cases where physical protection of the area may be necessary the management of the area may be assigned to another agency.)) through actions identified in management plans that will be prepared or approved by the department for each reserve in accordance with WAC 332-30-107(5).

(((6))) (a) When ((DNR)) the department retains the management of a reserve ((areas the extent of the)) area, management will ((consist of)) include a critical review of lease applications within the reserve area to ((insure)) ensure proposed activities or structures will ((not conflict with the basis for reserve designation.)) be consistent with the designated reserve management plan. This review will consist of at least the following:

(((a))) (i) An environmental ((assessment.)) evaluation.

(((b))) (ii) Request of agencies or institutions previously identified as having a special interest in the area for their concerns with regard to the project.

(b) Legally authorized structures or activities in existence within the reserve area at the time of reserve nomination will be allowed to continue until the end of the lease term according to terms of the lease.

(c) Legally authorized structures or activities in existence within the reserve area at the time of reserve nomination may expand, intensify their use, or be renewed provided said expansion, intensification, or renewal is consistent with the designated reserve management plan.

(d) Leases for new structures or new activities within the reserve area must be consistent with the designated reserve management plan.

(((7))) (e) Proposed leases for structures or activities ((immediately adjacent to any)) outside of any designated reserve area will be subjected to the same critical review ((as)) described in subsections 5(a) through 5(d) of this section for leases within the reserve area if ((the)) similar structures and/or similar activities have demonstrated the potential ((of)) to adversely impact habitats and species identified for conservation in the designated reserve management plan by:

(((a) Degrading water quality,

(b) Altering local currents,

(c) Damaging marine life, or

(d) Increasing vessel traffic.

(8) All management costs are to be borne by the administering agency. Generally, no lease fee is required.))

(i) Degrading water or sediment quality within the reserve,

(ii) Altering local hydrology within the reserve, or

(iii) Damaging aquatic life within the reserve.

[Statutory Authority: RCW 43.30.150. 80-09-005 (Order 343), 332-30-151, filed 7/3/80.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

Washington State Code Reviser's Office