5776 AAS 4/23/95

SB 5776 - S AMD - 428

    BySenators Fraser, Swecker, Haugen and A. Anderson

                                        ADOPTED AS AMENDED 4/23/95

    Strike everything after the enacting clause and insert the following:

    "Sec. 1.  RCW 35.44.020 and 1987 c 242 s 4 are each amended to read as follows:

    There shall be included in the cost and expense of every local improvement for assessment against the property in the district created to pay the same, or any part thereof:

    (1) The cost of all of the construction or improvement authorized for the district including, but not limited to, that portion of the improvement within the street intersections;

    (2) The estimated cost and expense of all engineering and surveying necessary for the improvement done under the supervision of the city or town engineer;

    (3) The estimated cost and expense of ascertaining the ownership of the lots or parcels of land included in the assessment district;

    (4) The estimated cost and expense of advertising, mailing, and publishing all necessary notices;

    (5) The estimated cost and expense of accounting, clerical labor, and of books and blanks extended or used on the part of the city or town clerk and city or town treasurer in connection with the improvement;

    (6) All cost of the acquisition of rights of way, property, easements, or other facilities or rights, including without limitation rights to use property, facilities, or other improvements appurtenant, related to, and/or useful in connection with the local improvement, whether by eminent domain, purchase, gift, payment of connection charges, capacity charges, or other similar charges or in any other manner;

    (7) The cost for legal, financial, and appraisal services and any other expenses incurred by the city, town, or public corporation for the district or in the formation thereof, or by the city, town, or public corporation in connection with such construction or improvement and in the financing thereof, including the issuance of any bonds and the cost of providing for increases in the local improvement guaranty fund, or providing for a separate reserve fund or other security for the payment of principal of and interest on such bonds.

    Any of the costs set forth in this section may be excluded from the cost and expense to be assessed against the property in such local improvement district and may be paid from any other moneys available therefor if the legislative body of the city or town so designates by ordinance at any time.

    Sec. 2.  RCW 43.21B.160 and 1990 c 65 s 5 are each amended to read as follows:

    In all appeals ((involving a formal hearing)), the hearings board shall have all powers relating to administration of oaths, issuance of subpoenas, and taking of depositions as are granted to agencies in chapter 34.05 RCW, the Administrative Procedure Act.  The hearings board, and each member thereof, shall be subject to all duties imposed upon, and shall have all powers granted to, an agency by those provisions of chapter 34.05 RCW relating to adjudicative proceedings.  In the case of appeals within the jurisdiction of the hearings board, the hearings board, or any member thereof, may obtain such assistance, including the making of field investigations, from the staff of the director as the hearings board, or any member thereof, may deem necessary or appropriate.  Any communication, oral or written, from the staff of the director to the hearings board shall be presented only in an open hearing.

    Sec. 3.  RCW 43.21B.170 and 1970 ex.s. c 62 s 47 are each amended to read as follows:

    All proceedings((, including both formal and informal hearings,)) before the hearings board or any of its members shall be conducted in accordance with such rules of practice and procedure as the hearings board may prescribe.  The hearings board shall publish such rules and arrange for the reasonable distribution thereof.

    Sec. 4.  RCW 43.21B.190 and 1994 c 253 s 7 are each amended to read as follows:

    Within thirty days after the final decision and order of the hearings board upon such an appeal has been communicated to the interested parties, such interested party aggrieved by the decision and order of the hearings board may appeal to the superior court.  ((In all appeals involving a decision or an order of the hearings board after an informal hearing, the petition shall be filed in the superior court for the county of the petitioner's residence or principal place of business, or in the absence of a residence or principal place of business, for Thurston county.  Such appeal may be perfected by filing with the clerk of the superior court a notice of appeal, and by serving a copy thereof by mail, or personally on the director, the air pollution control boards or authorities, established pursuant to chapter 70.94 RCW or on the board as the case may be.  The hearings board shall serve upon the appealing party, the director, the air pollution control board or authorities established pursuant to chapter 70.94 RCW, or the board, as the case may be, and on any other party appearing at the hearings board's proceeding, and file with the clerk of the court before trial, a certified copy of the hearings board's decision and order.  Appellate review of a decision of the superior court may be sought as in other civil cases.  No bond shall be required on appeals to the superior court or on review by the supreme court unless specifically required by the judge of the superior court.))

    Sec. 5.  RCW 34.05.518 and 1988 c 288 s 503 are each amended to read as follows:

(1) The final decision of an administrative agency in an adjudicative proceeding under this chapter may be directly reviewed by the court of appeals either (a) upon certification by the superior court pursuant to this section or (b) if the final decision is from an environmental board as defined in subsection (3) of this section, upon acceptance by the court of appeals after a certificate of appealability has been filed by the environmental board that rendered the final decision.

(2) For direct review upon certification by the superior court, an application for direct review must be filed with the superior court within thirty days of the filing of the petition for review in superior court.  The superior court may certify a case for direct review only if the judicial review is limited to the record of the agency proceeding and the court finds that:

    (((1))) (a) Fundamental and urgent issues affecting the future administrative process or the public interest are involved which require a prompt determination;

    (((2))) (b) Delay in obtaining a final and prompt determination of such issues would be detrimental to any party or the public interest;

    (((3))) (c) An appeal to the court of appeals would be likely regardless of the determination in superior court; and

    (((4))) (d) The appellate court's determination in the proceeding would have significant precedential value.

Procedures for certification shall be established by court rule.

(3)(a) For the purposes of direct review of final decisions of environmental boards, environmental boards include those boards identified in RCW 43.21B.005 and growth management hearings boards as identified in RCW 36.70A.250.

(b) An environmental board may issue a certificate of appealability if it finds that delay in obtaining a final and prompt determination of the issues would be detrimental to any party or the public interest and either:

(i) Fundamental and urgent state-wide or regional issues are raised; or

(ii) The proceeding is likely to have significant precedential value.

(4) The environmental board shall state in the certificate of appealability which criteria it applied, explain how that criteria was met, and file with the certificate a copy of the final decision.

(5) For an appellate court to accept direct review of a final decision of an environmental board, it shall consider the same criteria outlined in subsection (3) of this section.

(6) The procedures for direct review of final decisions of environmental boards include:

(a) Within thirty days after filing the petition for review with the superior court, a party may file an application for direct review with the superior court and serve the appropriate environmental board and all parties of record.  The application shall request the environmental board to file a certificate of appealability.

(b) If an issue on review is the jurisdiction of the environmental board, the board may file an application for direct review on that issue.

(c) The environmental board shall have thirty days to grant or deny the request for a certificate of appealability and its decision shall be filed with the superior court and served on all parties of record.

(d) If a certificate of appealability is issued, the parties shall have fifteen days from the date of service to file a notice of discretionary review in the superior court, and the notice shall include a copy of the certificate of appealability and a copy of the final decision.

(e) If the appellate court accepts review, the certificate of appealability shall be transmitted to the court of appeals as part of the certified record.

(f) If a certificate of appealability is denied, review shall be by the superior court.  The superior court's decision may be appealed to the court of appeals.

    Sec. 6.  RCW 34.05.522 and 1988 c 288 s 504 are each amended to read as follows:

    The court of appeals may refuse to accept direct review of a case ((certified)) pursuant to RCW 34.05.518 if it finds that the case does not meet the applicable standard in RCW 34.05.518(2) or (5).  Rules of Appellate Procedure 2.3 do not apply in this instance.  The refusal to accept such review is not subject to further appellate review, notwithstanding anything in Rule 13.3 of the Rules of Appellate Procedure to the contrary.

    Sec. 7.  RCW 75.20.140 and 1989 c 175 s 161 are each amended to read as follows:

    (1) ((In all appeals over which the hydraulic appeals board has jurisdiction, a party taking an appeal may elect either a formal or informal hearing.  Such election shall be made according to the rules of practice and procedure to be adopted by the hydraulic appeals board.  In the event that appeals are taken from the same decision, order, or determination, by different parties and only one of such parties elects a formal hearing, a formal hearing shall be granted.

    (2))) In all appeals, the hydraulic appeals board shall have all powers relating to administration of oaths, issuance of subpoenas, and taking of depositions, but such powers shall be exercised in conformity with chapter 34.05 RCW.

    (((3))) (2) In all appeals ((involving a formal hearing)), the hydraulic appeals board, and each member thereof, shall be subject to all duties imposed upon and shall have all powers granted to, an agency by those provisions of chapter 34.05 RCW relating to adjudicative proceedings.

    (((4))) (3) All proceedings((, including both formal and informal hearings,)) before the hydraulic appeals board or any of its members shall be conducted in accordance with such rules of practice and procedure as the board may prescribe.  Such rules shall be published and distributed.

    (((5))) (4) Judicial review of a decision of the hydraulic appeals board ((shall be de novo except when the decision has been rendered pursuant to the formal hearing, in which event judicial review)) may be obtained only pursuant to RCW 34.05.510 through 34.05.598.

NEW SECTION. Sec. 8.  The following acts or parts of acts are each repealed:

(1) RCW 43.21B.140 and 1987 c 109 s 30 & 1970 ex.s. c 62 s 44; and

(2) RCW 43.21B.150 and 1990 c 65 s 4, 1974 ex.s. c 69 s 2, & 1970 ex.s. c 62 s 45.

    Sec. 9.  RCW 36.70A.030 and 1994 c 307 s 2 and 1994 c 257 s 5 are each reenacted and amended to read as follows:

    Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

    (1) "Adopt a comprehensive land use plan" means to enact a new comprehensive land use plan or to update an existing comprehensive land use plan.

    (2) "Agricultural land" means land primarily devoted to the commercial production of horticultural, viticultural, floricultural, dairy, apiary, vegetable, or animal products or of berries, grain, hay, straw, turf, seed, Christmas trees not subject to the excise tax imposed by RCW 84.33.100 through 84.33.140, finfish in upland hatcheries, or livestock, and that has long-term commercial significance for agricultural production.

    (3) "City" means any city or town, including a code city.

    (4) "Comprehensive land use plan," "comprehensive plan," or "plan" means a generalized coordinated land use policy statement of the governing body of a county or city that is adopted pursuant to this chapter.

    (5) "Critical areas" include the following areas and ecosystems:  (a) Wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas.

    (6) "Department" means the department of community, trade, and economic development.

    (7) ((For purposes of RCW 36.70A.065 and 36.70A.440, "development permit application" means any application for a development proposal for a use that could be permitted under a plan adopted pursuant to this chapter and is consistent with the underlying land use and zoning, including but not limited to building permits, subdivisions, binding site plans, planned unit developments, conditional uses or other applications pertaining to land uses, but shall not include rezones, proposed amendments to comprehensive plans or the adoption or amendment of development regulations.

    (8))) "Development regulations" means ((any)) the controls placed on development or land use activities by a county or city, including, but not limited to, zoning ordinances, critical areas ordinances, shoreline master programs, official controls, planned unit development ordinances, subdivision ordinances, and binding site plan ordinances together with any amendments thereto.  A development regulation does not include a decision to approve a project permit application, as defined in section 402, chapter ..... (Engrossed Substitute House Bill No. 1724), Laws of 1995, even though the decision may be expressed in a resolution or ordinance of the legislative body of the county or city.

    (((9))) (8) "Forest land" means land primarily devoted to growing trees for long-term commercial timber production on land that can be economically and practically managed for such production, including Christmas trees subject to the excise tax imposed under RCW 84.33.100 through 84.33.140, and that has long-term commercial significance.  In determining whether forest land is primarily devoted to growing trees for long-term commercial timber production on land that can be economically and practically managed for such production, the following factors shall be considered:  (a) The proximity of the land to urban, suburban, and rural settlements; (b) surrounding parcel size and the compatibility and intensity of adjacent and nearby land uses; (c) long-term local economic conditions that affect the ability to manage for timber production; and (d) the availability of public facilities and services conducive to conversion of forest land to other uses.

    (((10))) (9) "Geologically hazardous areas"  means areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events, are not suited to the siting of commercial, residential, or industrial development consistent with public health or safety concerns.

    (((11))) (10) "Long-term commercial significance" includes the growing capacity, productivity, and soil composition of the land for long-term commercial production, in consideration with the land's proximity to  population areas, and the possibility of more intense uses of the land.

    (((12))) (11) "Minerals" include gravel, sand, and valuable metallic substances.

    (((13))) (12) "Public facilities" include streets, roads, highways, sidewalks, street and road lighting systems, traffic signals, domestic water systems, storm and sanitary sewer systems, parks and recreational facilities, and schools.

    (((14))) (13) "Public services" include fire protection and suppression, law enforcement, public health, education, recreation, environmental protection, and other governmental services.

    (((15))) (14) "Urban growth" refers to growth that makes intensive use of land for the location of buildings, structures, and impermeable surfaces to such a degree as to be incompatible with the primary use of such land for the production of food, other agricultural products, or fiber, or the extraction of mineral resources.  When allowed to spread over wide areas, urban growth typically requires urban governmental services.  "Characterized by urban growth" refers to land having urban growth located on it, or to land located in relationship to an area with urban growth on it as to be appropriate for urban growth.

    (((16))) (15) "Urban growth areas" means those areas designated by a county pursuant to RCW 36.70A.110.

    (((17))) (16) "Urban governmental services" include those governmental services historically and typically delivered by cities, and include storm and sanitary sewer systems, domestic water systems, street cleaning services, fire and police protection services, public transit services, and other public utilities associated with urban areas and normally not associated with nonurban areas.

    (((18))) (17) "Wetland" or "wetlands" means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.  Wetlands generally include swamps, marshes, bogs, and similar areas.  Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway.  ((However,)) Wetlands may include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands((, if permitted by the county or city)).

    Sec. 10.  RCW 90.58.030 and 1987 c 474 s 1 are each amended to read as follows:

    As used in this chapter, unless the context otherwise requires, the following definitions and concepts apply:

    (1) Administration:

    (a) "Department" means the department of ecology;

    (b) "Director" means the director of the department of ecology;

    (c) "Local government" means any county, incorporated city, or town which contains within its boundaries any lands or waters subject to this chapter;

    (d) "Person" means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or agency of the state or local governmental unit however designated;

    (e) "Hearing board" means the shoreline hearings board established by this chapter.

    (2) Geographical:

    (a) "Extreme low tide" means the lowest line on the land reached by a receding tide;

    (b) "Ordinary high water mark" on all lakes, streams, and tidal water is that mark that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation as that condition exists on June 1, 1971, as it may naturally change thereafter, or as it may change thereafter in accordance with permits issued by a local government or the department:  PROVIDED, That in any area where the ordinary high water mark cannot be found, the ordinary high water mark adjoining salt water shall be the line of mean higher high tide and the ordinary high water mark adjoining fresh water shall be the line of mean high water;

    (c) "Shorelines of the state" are the total of all "shorelines" and "shorelines of state-wide significance" within the state;

    (d) "Shorelines" means all of the water areas of the state, including reservoirs, and their associated ((wetlands)) shorelands, together with the lands underlying them; except (i) shorelines of state-wide significance; (ii) shorelines on segments of streams upstream of a point where the mean annual flow is twenty cubic feet per second or less and the wetlands associated with such upstream segments; and (iii) shorelines on lakes less than twenty acres in size and wetlands associated with such small lakes;

    (e) "Shorelines of state-wide significance" means the following shorelines of the state:

    (i) The area between the ordinary high water mark and the western boundary of the state from Cape Disappointment on the south to Cape Flattery on the north, including harbors, bays, estuaries, and inlets;

    (ii) Those areas of Puget Sound and adjacent salt waters and the Strait of Juan de Fuca between the ordinary high water mark and the line of extreme low tide as follows:

    (A) Nisqually Delta‑-from DeWolf Bight to Tatsolo Point,

    (B) Birch Bay‑-from Point Whitehorn to Birch Point,

    (C) Hood Canal‑-from Tala Point to Foulweather Bluff,

    (D) Skagit Bay and adjacent area‑-from Brown Point to Yokeko Point, and

    (E) Padilla Bay‑-from March Point to William Point;

    (iii) Those areas of Puget Sound and the Strait of Juan de Fuca and adjacent salt waters north to the Canadian line and lying seaward from the line of extreme low tide;

    (iv) Those lakes, whether natural, artificial, or a combination thereof, with a surface acreage of one thousand acres or more measured at the ordinary high water mark;

    (v) Those natural rivers or segments thereof as follows:

    (A) Any west of the crest of the Cascade range downstream of a point where the mean annual flow is measured at one thousand cubic feet per second or more,

    (B) Any east of the crest of the Cascade range downstream of a point where the annual flow is measured at two hundred cubic feet per second or more, or those portions of rivers east of the crest of the Cascade range downstream from the first three hundred square miles of drainage area, whichever is longer;

    (vi) Those ((wetlands)) shorelands associated with (i), (ii), (iv), and (v) of this subsection (2)(e);

    (f) "((Wetlands)) Shorelands" or "((wetland)) shoreland areas" means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all ((marshes, bogs, swamps,)) wetlands and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology((:  PROVIDED, That)).  Any county or city may determine that portion of a one-hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom;

    (g) "Floodway" means those portions of the area of a river valley lying streamward from the outer limits of a watercourse upon which flood waters are carried during periods of flooding that occur with reasonable regularity, although not necessarily annually, said floodway being identified, under normal condition, by changes in surface soil conditions or changes in types or quality of vegetative ground cover condition.  The floodway shall not include those lands that can reasonably be expected to be protected from flood waters by flood control devices maintained by or maintained under license from the federal government, the state, or a political subdivision of the state;

(h) "Wetlands" means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.  Wetlands generally include swamps, marshes, bogs, and similar areas.  Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas to mitigate the conversion of wetlands.

    (3) Procedural terms:

    (a) "Guidelines" means those standards adopted to implement the policy of this chapter for regulation of use of the shorelines of the state prior to adoption of master programs.  Such standards shall also provide criteria to local governments and the department in developing master programs;

    (b) "Master program" shall mean the comprehensive use plan for a described area, and the use regulations together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals, and standards developed in accordance with the policies enunciated in RCW 90.58.020;

    (c) "State master program" is the cumulative total of all master programs approved or adopted by the department of ecology;

    (d) "Development" means a use consisting of the construction or exterior alteration of structures; dredging; drilling; dumping; filling; removal of any sand, gravel, or minerals; bulkheading; driving of piling; placing of obstructions; or any project of a permanent or temporary nature which interferes with the normal public use of the surface of the waters overlying lands subject to this chapter at any state of water level;

    (e) "Substantial development" shall mean any development of which the total cost or fair market value exceeds two thousand five hundred dollars, or any development which materially interferes with the normal public use of the water or shorelines of the state; except that the following shall not be considered substantial developments for the purpose of this chapter:

    (i) Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements;

    (ii) Construction of the normal protective bulkhead common to single family residences;

    (iii) Emergency construction necessary to protect property from damage by the elements;

    (iv) Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on ((wetlands)) shorelands, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels((:  PROVIDED, That)).  A feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the ((wetlands)) shorelands by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities.  A feedlot shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations;

    (v) Construction or modification of navigational aids such as channel markers and anchor buoys;

    (vi) Construction on ((wetlands)) shorelands by an owner, lessee, or contract purchaser of a single family residence for his own use or for the use of his family, which residence does not exceed a height of thirty-five feet above average grade level and which meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this chapter;

    (vii) Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single and multiple family residences, the cost of which does not exceed two thousand five hundred dollars;

    (viii) Operation, maintenance, or construction of canals, waterways, drains, reservoirs, or other facilities that now exist or are hereafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water for the irrigation of lands;

    (ix) The marking of property lines or corners on state owned lands, when such marking does not significantly interfere with normal public use of the surface of the water;

    (x) Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on September 8, 1975, which were created, developed, or utilized primarily as a part of an agricultural drainage or diking system((;

    (xi) Any action commenced prior to December 31, 1982, pertaining to (A) the restoration of interim transportation services as may be necessary as a consequence of the destruction of the Hood Canal bridge, including, but not limited to, improvements to highways, development of park and ride facilities, and development of ferry terminal facilities until a new or reconstructed Hood Canal bridge is open to traffic; and (B) the reconstruction of a permanent bridge at the site of the original Hood Canal bridge)).

NEW SECTION. Sec. 11.  A new section is added to chapter 90.58 RCW to read as follows:

    The department by rule shall adopt a manual for the delineation of wetlands under this chapter that implements and is consistent with the 1987 manual in use on January 1, 1995, by the United States army corps of engineers and the United States environmental protection agency.  If the corps of engineers and the environmental protection agency adopt  changes to or a different manual, the department shall consider those changes and may adopt rules implementing those changes.

NEW SECTION. Sec. 12.  A new section is added to chapter 36.70A RCW to read as follows:

    Wetlands regulated under development regulations adopted pursuant to this chapter shall be delineated in accordance with the manual adopted by the department pursuant to section 11 of this act.

NEW SECTION. Sec. 13.  A new section is added to chapter 36.70A RCW to read as follows:

    Nothing in section 104, chapter ..... (Engrossed Substitute House Bill No. 1724), Laws of 1995, shall be construed to authorize a county or city to adopt regulations applicable to shorelands as defined in RCW 90.58.030 that are inconsistent with the provisions of chapter 90.58 RCW."

SB 5776 - S AMD - 428

    By Senators Fraser, Swecker, Haugen and A. Anderson

                                                   ADOPTED 4/23/95

    On page 1, line 2 of the title, after "management;" strike the remainder of the title and insert "amending RCW 35.44.020, 43.21B.160, 43.21B.170, 43.21B.190, 34.05.518, 34.05.522, 75.20.140 and 90.58.030; reenacting and amending RCW 36.70A.030; adding a new section to chapter 90.58 RCW; adding new sections to chapter 36.70A RCW; and repealing RCW 43.21B.140 and 43.21B.150."

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