AN ACT
Relating to erosion of shoreline uplands used for residential purposes; and
amending RCW 90.58.020, 90.58.100, and 90.58.140.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
Sec.
1. RCW
90.58.020 and 1982 1st ex.s. c 13 s 1 are each amended to read as follows:
The
legislature finds that the shorelines of the state 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. In addition it finds that ever increasing pressures of
additional uses are being placed on the shorelines necessitating increased
coordination in the management and development of the shorelines of the state.
The legislature further finds that much of the shorelines of the state and the
uplands adjacent thereto are in private ownership; that unrestricted
construction on the privately owned or publicly owned shorelines of the state is
not in the best public interest; and therefore, coordinated planning is
necessary in order to protect the public interest associated with the
shorelines of the state while, at the same time, recognizing and protecting
private property rights consistent with the public interest. There is,
therefor, a clear and urgent demand for a planned, rational, and concerted
effort, jointly performed by federal, state, and local governments, to prevent
the inherent harm in an uncoordinated and piecemeal development of the state's
shorelines.
It is
the policy of the state to provide for the management of the shorelines of the
state by planning for and fostering all reasonable and appropriate uses. This
policy is designed to insure the development of these shorelines in a manner
which, while allowing for limited reduction of rights of the public in the
navigable waters, will promote and enhance the public interest. This policy
contemplates protecting against adverse effects to the public health, the land
and its vegetation and wildlife, and the waters of the state and their aquatic
life, while protecting generally public rights of navigation and corollary
rights incidental thereto.
The
legislature declares that the interest of all of the people shall be paramount
in the management of shorelines of state-wide significance. The department, in
adopting guidelines for shorelines of state-wide significance, and local
government, in developing master programs for shorelines of state-wide
significance, shall give preference to uses in the following order of
preference which:
(1)
Recognize and protect the state-wide interest over local interest;
(2)
Preserve the natural character of the shoreline;
(3)
Result in long term over short term benefit;
(4)
Protect the resources and ecology of the shoreline;
(5)
Increase public access to publicly owned areas of the shorelines;
(6)
Increase recreational opportunities for the public in the shoreline;
(7)
Provide for any other element as defined in RCW 90.58.100 deemed appropriate or
necessary.
In the
implementation of this policy the public's opportunity to enjoy the physical
and aesthetic qualities of natural shorelines of the state shall be preserved
to the greatest extent feasible consistent with the overall best interest of
the state and the people generally. To this end uses shall be preferred which
are consistent with control of pollution and prevention of damage to the
natural environment, or are unique to or dependent upon use of the state's
shoreline. Alterations of the natural condition of the shorelines of the
state, in those limited instances when authorized, shall be given priority for
single family residences and their appurtenant structures, ports,
shoreline recreational uses including but not limited to parks, marinas, piers,
and other improvements facilitating public access to shorelines of the state,
industrial and commercial developments which are particularly dependent on
their location on or use of the shorelines of the state and other development
that will provide an opportunity for substantial numbers of the people to enjoy
the shorelines of the state. Alterations of the natural condition of the
shorelines and wetlands of the state shall be recognized by the department.
Shorelines and wetlands of the state shall be appropriately classified and
these classifications shall be revised when circumstances warrant regardless of
whether the change in circumstances occurs through man-made causes or natural
causes. Any areas resulting from alterations of the natural condition of the
shorelines and wetlands of the state no longer meeting the definition of
"shorelines of the state" shall not be subject to the provisions of
chapter 90.58 RCW.
Permitted
uses in the shorelines of the state shall be designed and conducted in a manner
to minimize, insofar as practical, any resultant damage to the ecology and
environment of the shoreline area and any interference with the public's use of
the water.
Sec.
2. RCW
90.58.100 and 1991 c 322 s 32 are each amended to read as follows:
(1)
The master programs provided for in this chapter, when adopted and approved by
the department, as appropriate, shall constitute use regulations for the
various shorelines of the state. In preparing the master programs, and any
amendments thereto, the department and local governments shall to the extent
feasible:
(a)
Utilize a systematic interdisciplinary approach which will insure the
integrated use of the natural and social sciences and the environmental design
arts;
(b)
Consult with and obtain the comments of any federal, state, regional, or local
agency having any special expertise with respect to any environmental impact;
(c)
Consider all plans, studies, surveys, inventories, and systems of
classification made or being made by federal, state, regional, or local
agencies, by private individuals, or by organizations dealing with pertinent
shorelines of the state;
(d)
Conduct or support such further research, studies, surveys, and interviews as
are deemed necessary;
(e)
Utilize all available information regarding hydrology, geography, topography,
ecology, economics, and other pertinent data;
(f)
Employ, when feasible, all appropriate, modern scientific data processing and
computer techniques to store, index, analyze, and manage the information
gathered.
(2)
The master programs shall include, when appropriate, the following:
(a) An
economic development element for the location and design of industries,
transportation facilities, port facilities, tourist facilities, commerce and
other developments that are particularly dependent on their location on or use
of the shorelines of the state;
(b) A
public access element making provision for public access to publicly owned
areas;
(c) A
recreational element for the preservation and enlargement of recreational
opportunities, including but not limited to parks, tidelands, beaches, and
recreational areas;
(d) A
circulation element consisting of the general location and extent of existing
and proposed major thoroughfares, transportation routes, terminals, and other
public utilities and facilities, all correlated with the shoreline use element;
(e) A
use element which considers the proposed general distribution and general
location and extent of the use on shorelines and adjacent land areas for
housing, business, industry, transportation, agriculture, natural resources,
recreation, education, public buildings and grounds, and other categories of
public and private uses of the land;
(f) A
conservation element for the preservation of natural resources, including but
not limited to scenic vistas, aesthetics, and vital estuarine areas for
fisheries and wildlife protection;
(g) An
historic, cultural, scientific, and educational element for the protection and
restoration of buildings, sites, and areas having historic, cultural,
scientific, or educational values;
(h) An
element that gives consideration to the state-wide interest in the prevention
and minimization of flood damages; and
(i)
Any other element deemed appropriate or necessary to effectuate the policy of
this chapter.
(3)
The master programs shall include such map or maps, descriptive text, diagrams
and charts, or other descriptive material as are necessary to provide for ease
of understanding.
(4)
Master programs will reflect that state-owned shorelines of the state are
particularly adapted to providing wilderness beaches, ecological study areas,
and other recreational activities for the public and will give appropriate
special consideration to same.
(5)
Each master program shall contain provisions to allow for the varying of the
application of use regulations of the program, including provisions for permits
for conditional uses and variances, to insure that strict implementation of a
program will not create unnecessary hardships or thwart the policy enumerated
in RCW 90.58.020. Any such varying shall be allowed only if extraordinary
circumstances are shown and the public interest suffers no substantial detrimental
effect. The concept of this subsection shall be incorporated in the rules
adopted by the department relating to the establishment of a permit system as
provided in RCW 90.58.140(3).
(6)
Each master program shall contain standards governing the protection of single
family residences and appurtenant structures against damage or loss due to
shoreline erosion. The standards shall govern the issuance of substantial
development permits for shoreline protection, including structural methods such
as construction of bulkheads, and nonstructural methods of protection. The
standards shall provide for methods which achieve effective and timely
protection against loss or damage to single family residences and appurtenant
structures due to shoreline erosion. The standards shall provide a preference
for permit issuance for measures to protect single family residences occupied
prior to January 1, 1992, where the proposed measure is designed to minimize
harm to the shoreline natural environment.
Sec.
3. RCW
90.58.140 and 1990 c 201 s 2 are each amended to read as follows:
(1) A
development shall not be undertaken on the shorelines of the state unless it is
consistent with the policy of this chapter and, after adoption or approval, as
appropriate, the applicable guidelines, rules, or master program.
(2) A
substantial development shall not be undertaken on shorelines of the state
without first obtaining a permit from the government entity having
administrative jurisdiction under this chapter.
A
permit shall be granted:
(a)
From June 1, 1971, until such time as an applicable master program has become
effective, only when the development proposed is consistent with: (i) The
policy of RCW 90.58.020; and (ii) after their adoption, the guidelines and
rules of the department; and (iii) so far as can be ascertained, the master
program being developed for the area;
(b)
After adoption or approval, as appropriate, by the department of an applicable
master program, only when the development proposed is consistent with the
applicable master program and the provisions of chapter 90.58 RCW.
(3)
The local government shall establish a program, consistent with rules adopted
by the department, for the administration and enforcement of the permit system
provided in this section. The administration of the system so established
shall be performed exclusively by the local government.
(4)
Except as otherwise specifically provided in subsection (13) of this section,
the local government shall require notification of the public of all applications
for permits governed by any permit system established pursuant to subsection
(3) of this section by ensuring that:
(a) A
notice of such an application is published at least once a week on the same day
of the week for two consecutive weeks in a legal newspaper of general
circulation within the area in which the development is proposed; and
(b)
Additional notice of such an application is given by at least one of the
following methods:
(i)
Mailing of the notice to the latest recorded real property owners as shown by
the records of the county assessor within at least three hundred feet of the
boundary of the property upon which the substantial development is proposed;
(ii)
Posting of the notice in a conspicuous manner on the property upon which the
project is to be constructed; or
(iii)
Any other manner deemed appropriate by local authorities to accomplish the
objectives of reasonable notice to adjacent landowners and the public.
The
notices shall include a statement that any person desiring to submit written
comments concerning an application, or desiring to receive a copy of the final
order concerning an application as expeditiously as possible after the issuance
of the order, may submit the comments or requests for orders to the local
government within thirty days of the last date the notice is to be published
pursuant to subsection (a) of this subsection. The local government shall
forward, in a timely manner following the issuance of an order, a copy of the
order to each person who submits a request for the order.
If a
hearing is to be held on an application, notices of such a hearing shall
include a statement that any person may submit oral or written comments on an
application at the hearing.
(5)
The system shall include provisions to assure that construction pursuant to a
permit will not begin or be authorized until thirty days from the date the
final order was filed as provided in subsection (6) of this section; or until
all review proceedings are terminated if the proceedings were initiated within
thirty days from the date of filing as defined in subsection (6) of this
section except as follows:
(a) In
the case of any permit issued to the state of Washington, department of
transportation, for the construction and modification of SR 90 (I-90) on or
adjacent to Lake Washington, the construction may begin after thirty days from
the date of filing, and the permits are valid until December 31, 1995;
(b) If
a permit is granted by the local government and (i) the granting of the permit
is appealed to the shorelines hearings board within thirty days of the date of
filing, (ii) the hearings board approves the granting of the permit by the
local government or approves a portion of the substantial development for which
the local government issued the permit, and (iii) an appeal for judicial review
of the hearings board decision is filed pursuant to chapter 34.05 RCW, the
permittee may request, within ten days of the filing of the appeal with the
court, a hearing before the court to determine whether construction may begin
pursuant to the permit approved by the hearings board or to a revised permit
issued pursuant to the order of the hearings board. If, at the conclusion of
the hearing, the court finds that construction pursuant to such a permit would
not involve a significant, irreversible damaging of the environment, the court
may allow the permittee to begin the construction pursuant to the approved or
revised permit as the court deems appropriate. The court may require the
permittee to post bonds, in the name of the local government that issued the
permit, sufficient to remove the substantial development or to restore the
environment if the permit is ultimately disapproved by the courts, or to alter
the substantial development if the alteration is ultimately ordered by the
courts. Construction pursuant to a permit revised at the direction of the
hearings board may begin only on that portion of the substantial development
for which the local government had originally issued the permit, and
construction pursuant to such a revised permit on other portions of the
substantial development may not begin until after all review proceedings are
terminated. In such a hearing before the court, the burden of proving whether
the construction may involve significant irreversible damage to the environment
and demonstrating whether such construction would or would not be appropriate
is on the appellant;
(c) If
a permit is granted by the local government and the granting of the permit is
appealed directly to the superior court for judicial review pursuant to the
proviso in RCW 90.58.180(1), the permittee may request the court to remand the
appeal to the shorelines hearings board, in which case the appeal shall be so
remanded and construction pursuant to such a permit shall be governed by the
provisions of subsection (b) of this subsection or may otherwise begin after
review proceedings before the hearings board are terminated if judicial review
is not thereafter requested pursuant to chapter 34.05 RCW;
(d) If
the permit is for a substantial development meeting the requirements of
subsection (13) of this section, construction pursuant to that permit may not
begin or be authorized until thirty days from the date the final order was
filed as provided in subsection (6) of this section.
If a
permittee begins construction pursuant to subsections (a), (b), (c), or (d) of
this subsection, the construction is begun at the permittee's own risk. If, as
a result of judicial review, the courts order the removal of any portion of the
construction or the restoration of any portion of the environment involved or
require the alteration of any portion of a substantial development constructed
pursuant to a permit, the permittee is barred from recovering damages or costs
involved in adhering to such requirements from the local government that
granted the permit, the hearings board, or any appellant or intervener.
(6)
Any ruling on an application for a permit under the authority of this section,
whether it is an approval or a denial, shall, concurrently with the transmittal
of the ruling to the applicant, be filed with the department and the attorney
general. With regard to a permit other than a permit governed by subsection
(12) of this section, "date of filing" as used herein means the date of
actual receipt by the department. With regard to a permit for a variance or a
conditional use, "date of filing" means the date a decision of the
department rendered on the permit pursuant to subsection (12) of this section
is transmitted by the department to the local government. The department shall
notify in writing the local government and the applicant of the date of filing.
(7)
Applicants for permits under this section have the burden of proving that a
proposed substantial development is consistent with the criteria that must be
met before a permit is granted. In any review of the granting or denial of an
application for a permit as provided in RCW 90.58.180 (1) and (2), the person
requesting the review has the burden of proof.
(8)
Any permit may, after a hearing with adequate notice to the permittee and the
public, be rescinded by the issuing authority upon the finding that a permittee
has not complied with conditions of a permit. If the department is of the
opinion that noncompliance exists, the department shall provide written notice
to the local government and the permittee. If the department is of the opinion
that the noncompliance continues to exist thirty days after the date of the
notice, and the local government has taken no action to rescind the permit, the
department may petition the hearings board for a rescission of the permit upon
written notice of the petition to the local government and the permittee if the
request by the department is made to the hearings board within fifteen days of
the termination of the thirty-day notice to the local government.
(9)
The holder of a certification from the governor pursuant to chapter 80.50 RCW
shall not be required to obtain a permit under this section.
(10) A
permit shall not be required for any development on shorelines of the state
included within a preliminary or final plat approved by the applicable state
agency or local government before April 1, 1971, if:
(a)
The final plat was approved after April 13, 1961, or the preliminary plat was approved
after April 30, 1969; and
(b)
The development is completed within two years after June 1, 1971.
(11)
The applicable state agency or local government is authorized to approve a
final plat with respect to shorelines of the state included within a
preliminary plat approved after April 30, 1969, and before April 1, 1971:
PROVIDED, That any substantial development within the platted shorelines of the
state is authorized by a permit granted pursuant to this section, or does not
require a permit as provided in subsection (10) of this section, or does not
require a permit because of substantial development occurred before June 1,
1971.
(12)
Any permit for a variance or a conditional use by local government under
approved master programs must be submitted to the department for its approval
or disapproval.
(13)(a)
An application for a substantial development permit for a limited utility
extension or for the construction of a bulkhead or other measures to protect
a single family residence and its appurtenant structures from shoreline erosion
shall be subject to the following procedures:
(i)
The public comment period under subsection (4) of this section shall be twenty
days. The notice provided under subsection (4) of this section shall state the
manner in which the public may obtain a copy of the local government decision
on the application no later than two days following its issuance;
(ii)
The local government shall issue its decision to grant or deny the permit
within twenty-one days of the last day of the comment period specified in (i)
of this subsection; and
(iii)
If there is an appeal of the decision to grant or deny the permit to the local
government legislative authority, the appeal shall be finally determined by the
legislative authority within thirty days.
(b)
For purposes of this section, a limited utility extension means the extension
of a utility service that:
(i) Is
categorically exempt under chapter 43.21C RCW for one or more of the
following: Natural gas, electricity, telephone, water, or sewer;
(((b)
[ii])) (ii) Will serve an existing use in compliance with this
chapter; and
(((c)
[iii])) (iii) Will not extend more than twenty-five hundred linear
feet within the shorelines of the state.
