WSR 05-17-183

PROPOSED RULES

DEPARTMENT OF

NATURAL RESOURCES

[ Filed August 24, 2005, 8:52 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-14-115.

Title of Rule and Other Identifying Information: WAC 332-30-128 Rent review, the goal of this rule-making process is to provide adequate time for applicants, lessees, the Department of Natural Resources (DNR) and the Board of Natural Resources to consider all aspects of the rent review process. The amendments also clarify roles and provide more certainty as to the roles of each party in the process.

Hearing Location(s): Olympia, Public Library, 313 8th Avenue S.E. (corner of Franklin and 8th Avenue), Olympia, WA, on September 28, 2005, at 5:30 p.m. - 8 p.m.

Date of Intended Adoption: October 25, 2005.

Submit Written Comments to: Elizabeth Ellis, Aquatic Resources Division, Department of Natural Resources, P.O. Box 47027, Olympia, WA 98504-7027, e-mail Elizabeth.ellis@wadnr.gov, fax (360) 902-1786, by October 25, 2005.

Assistance for Persons with Disabilities: Contact Elizabeth Ellis by three days prior to hearing, telecommunications relay service 711 or (360) 902-1074.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: State law provides a process under which people who have existing contracts (lessees), or are processing applications (applicants) can request a review of DNR-calculated rent for parcels of state-owned aquatic land. This review is called rent review.

The proposed changes affect the amount of time applicants and lessees have to prepare for the rent review process. The changes also affect the amount of time DNR has to make a decision. The proposed changes provide more time for both lessees/applicants, the rent dispute appeals officer (RDAO) and the Board of Natural Resources (board) by extending filing periods and providing optional extensions. Under this proposal, the RDAO is provided with thirty days to review, and an optional extension of sixty days. The lessee/applicant is provided with a thirty day filing period when approaching the RDAO or the board. The board is provided with thirty days to review the information and ninety days to make a decision.

Reasons Supporting Proposal: Under the current rent review process, applicants/lessees are given a limited amount of time to discuss and coordinate (fifteen days). DNR is given a limited amount of time to review and make decisions (thirty days). This proposal allows the lessee, DNR and the Board of Natural Resources adequate time to fully consider all aspects of the rent review process. The proposed changes are not substantive, and will not change rents paid by lessees of state-owned aquatic lands. Instead, they are designed to clarify the rules, make them easier to understand and apply, consistent with current DNR standard practice.

Statutory Authority for Adoption: RCW 79.90.520.

Statute Being Implemented: RCW 79.90.520.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The proposed changes are consistent with current DNR standard practice, and would be implemented through its normal aquatic land management efforts.

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

Name of Agency Personnel Responsible for Drafting: Elizabeth Ellis, P.O. Box 47027, Olympia, WA 98504-7027, (360) 902-1074; Implementation and Enforcement: Fran McNair, P.O. Box 47027, Olympia, WA 98504-7027, (360) 902-1003.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.030(1), agencies must write a small business economic impact statement "if the proposed rule will impose more than minor costs on businesses in an industry." The proposed rule changes are consistent with current DNR standard practice, so they will not change rents for lessees nor impose any other costs.

A cost-benefit analysis is not required under RCW 34.05.328. Under RCW 34.05.328 (5)(b)(iv), agencies are not required to write a cost-benefit analysis for "rules that only...clarify language of a rule without changing its effect." The proposed rule changes only clarify the language consistent with current DNR standard practice.

August 22, 2005

Doug Sutherland

Commissioner of Public Lands


AMENDATORY SECTION(Amending Resolution No. 500, filed 11/5/85)

WAC 332-30-128   Rent review.   This section shall not apply to port districts managing aquatic lands under a management agreement (WAC 332-30-114).

(1) Eligibility to request review. Any lessee or applicant to lease or release state-owned aquatic lands may request review of any rent proposed to be charged by the department.

(2) Dispute officers. The manager of the marine lands division will be the rental dispute officer (RDO). The supervisor of the department, or his designee, will be the rental dispute appeals officer (RDAO).

(3) Submittals. A request for review of the rent (an original and two copies) shall be submitted within thirty days of notification by the department of the rent due from the lessee/applicant. The request for review shall contain sufficient information for the officers to make a decision on the appropriateness of the rent initially determined by the department. The burden of proof for showing that the rent is incorrect shall rest with the lessee/applicant.

(4) Rental due. The request for review shall be accompanied by one year's rent payment based on the preceding year's rate, or a portion thereof as determined by RCW 79.90.530; or based on the rate proposed by the department, or a portion thereof as determined by RCW 79.90.530, whichever is less. The applicant shall pay any additional rent or be entitled to a refund, with interest, within thirty days after completion of the review process provided in this section.

(5) Contents of request. The request for review shall state what the lessee/applicant believes the rent should be and shall contain, at the minimum, all necessary documentation to justify the lessee/applicant's position. This information shall include but not be limited to:

(a) Rationale. Why the rent established by the department is inappropriate. The supporting documentation for nonwater-dependent leases may include appraisals by professionally accredited appraisers.

(b) Lease information. A description of state-owned aquatic land under lease which shall include, but not be limited to:

(i) Lease or application number;

(ii) Map showing location of lease or proposed lease;

(iii) Legal description of lease area including area of lease;

(iv) The permitted or intended use on the leasehold; and

(v) The actual or current use on the leasehold premises.

(c) Substitute upland parcel. A lessee/applicant whose lease rent is determined according to RCW 79.90.480 (water-dependent leases) and who disputes the choice of the upland parcel as provided by WAC 332-30-123, shall indicate the upland parcel that should be substituted in the rental determination and shall provide the following information on the parcel:

(i) The county parcel number;

(ii) Its assessed value;

(iii) Its area in square feet or acres;

(iv) A map showing the location of the parcel; and

(v) A statement indicating the land use on the parcel and justifying why the parcel should be substituted.

(6) RDO review.

(a) The RDO shall evaluate the request for review within fifteen days of filing to determine if any further support materials are needed from the lessee/applicant or the department.

(b) The lessee/applicant or the department shall provide any needed materials to the RDO within thirty days of receiving a request from the RDO.

(c) The RDO may, at any time during the review, order a conference between the lessee/applicant and department staff to try to settle the rent dispute.

(d) The RDO shall issue a decision within sixty days of filing of the request. Such decision shall contain findings of fact for the decision. If a decision cannot be issued within that time, the lessee/applicant's request will automatically be granted and the rent proposed by the lessee/applicant will be the rent for the lease until the next rent revaluation; provided that, the RDO may extend the review period for one sixty-day period.

(7) RDAO review.

(a) The RDAO lessee/applicant may submit a petition within fifteen thirty days to the rental dispute appeals officer (RDAO) for of the final decision by the RDO, be petitioned to review of that decision.

(b) If the RDAO declines to review the petition on the decision of the RDO, the RDO's decision shall be the final decision of the RDAO.

(c) If the RDAO consents to review the decision, the review may only consider the factual record before the RDO and the written findings and decision of the RDO. The RDAO shall issue a decision on the petition containing written findings within thirty sixty days of the filing of the petition. The RDAO may extend the review period for one sixty-day period. This decision shall be the RDAO's final decision.

(8) Board review.

(a) The board of natural resources (board) lessee/applicant may, submit a petition within fifteen thirty days of to the board of natural resources (board) for final RDAO decision, be petitioned to review of the RDAO that decision.

(b) If the board declines to review the petition, the RDAO decision shall be the final decision of the board.

(c) If the board decides to review the petition, the department and the lessee/applicant shall present written statements on the final decision of the RDAO within fifteen thirty days of the decision to review. The board may request oral statements from the lessee/applicant or the department if the board decides a decision cannot be made solely on the written statements.

(d) The board shall issue a decision on the petition within sixty ninety days of the filing of the written statements by the lessee/applicant and the department.

[Statutory Authority: RCW 79.90.105, 79.90.300, 79.90.455, 79.90.460, 79.90.470, 79.90.475, 79.90.520, 79.68.010, 79.68.68 [79.68.080], and chapter 79.93 RCW. 85-22-066 (Resolution No. 500), 332-30-128, filed 11/5/85.]

Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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.

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office