WSR 10-09-063

PREPROPOSAL STATEMENT OF INQUIRY

DEPARTMENT OF ECOLOGY


[ Order 10-07 -- Filed April 19, 2010, 9:19 a.m. ]

Subject of Possible Rule Making: Shoreline Management Act rules including chapters 173-18, 173-20, 173-22, 173-26, 173-27 WAC. Issues being considered by ecology include: Geoduck aquaculture; limited amendments (noncomprehensive) to shoreline master programs; other housekeeping amendments; related definitions; and other amendments necessary to implement these changes. Recent legislation affecting chapter 90.58 RCW and the relationship between critical area ordinances and shoreline jurisdictions will be incorporated into the rules.

Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 90.58.120 Adoption of rules and 90.58.200 Rules and regulations. RCW 90.58.060 limits amendments to chapter 173-26 WAC, Part III (shoreline master program (SMP) guidelines) to one update per year. Authority to address geoduck aquaculture is found in RCW 43.21A.681.

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: There are three subgroups of rule changes being proposed. First, ecology is directed by RCW 43.21A.681 to adopt, by rule, guidance on siting and operations of geoduck aquaculture into the SMP guidelines. There is a high level of interest and controversy associated with geoduck aquaculture. The legislative intent for rulemaking is to address some of the controversy surrounding siting and operations. Second, ecology proposes changes to the current WAC 173-26-201 language for limited (noncomprehensive) amendments to local SMPs that will clarify the criteria for limited amendments. And third, other housekeeping amendments will ensure the rules are consistent with statutes governing over two hundred sixty towns, cities and counties with the responsibility to update and implement local SMPs. An addendum to the December 2003 SMP guidelines supplemental final environmental impact statement will be done. Housekeeping amendments do not require environmental assessment because they are required by statute.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: No other state agency has authority over shoreline master programs. However, other state and federal agencies do have authority related to shoreline habitat, water quality, and wildlife. They include: Washington departments of health, fish and wildlife, commerce and natural resources; the Puget Sound partnership; United States Army Corps of Engineers; United States Federal Emergency Management Agency; and National Oceanic and Atmospheric Administration's coastal zone management program. All these agencies are either on the shellfish advisory regulatory committee, or on the geoduck aquaculture list serve or the shoreline master program list serve, or will be added to a list serve for direct notification. State agencies will be offered presentations, informal consultations, and the opportunity to comment.

Process for Developing New Rule: Per RCW 43.21A.681 (HB 2220 codification), the shellfish advisory regulatory committee serves as the advisory committee for the rule changes related to geoduck aquaculture. Ecology plans to meet with affected local governments and interested parties to discuss the rule prior to the formal proposal. Once ecology formally proposes rule amendments, interested parties will have an opportunity to comment. Ecology will hold at least four public hearings. Additional information related to this rule making including the proposed amendments will be provided to interested parties and posted on ecology's web site http://ecy.wa.gov/programs/sea/shorelines/smp/rulemaking_new.html.

Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Cedar Bouta, Department of Ecology, Shorelands and Environmental Assistance Program, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6406, e-mail ShorelineRule@ecy.wa.gov, fax (360) 407-6902, web http://ecy.wa.gov/programs/sea/shorelines/smp/rulemaking_new.html. Ecology will share information on the agency web site and through a listserv. Ecology will also hold at least four public hearings during the comment period for the proposed rule. To sign up for e-mail notices http://www.ecy.wa.gov/maillist.html#rules.

April 16, 2010

Gordon White

Program Manager

Washington State Code Reviser's Office