AN ACT Relating to shoreline management; amending RCW 36.70A.480; adding a new section to chapter 90.58 RCW; adding a new chapter to Title 90 RCW; creating a new section; prescribing penalties; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that each county and city that has adopted and implemented plans under the requirements of the growth management act has accomplished through a participatory, public process a scheme for balanced environmental protection, economic development, and other important goals throughout its jurisdiction just as the state has required for twenty-five years for the utilization, protection, restoration, and preservation of shorelines. The legislature further finds that given the success of growth management in those jurisdictions that have completed initial implementation, along with the need for efficient and effective provision of governmental services, the mission and function of the shorelines management act should be coordinated and fully integrated with the planning and regulatory requirements of the growth management act, chapter 36.70A RCW.

In this act, the legislature authorizes and encourages each county and city that has adopted and implemented a comprehensive plan under chapter 36.70A RCW to manage its shorelines through a streamlined process while ensuring continued recognition of the valuable and fragile nature of our shorelines.

NEW SECTION. Sec. 2. A new section is added to chapter 90.58 RCW to read as follows:

Any county or city that has adopted and implemented its comprehensive plan under chapter 36.70A RCW may manage its shorelines under either this chapter or chapter 90.-- RCW (sections 4 through 46 of this act).

Sec. 3. RCW 36.70A.480 and 1995 c 347 s 104 are each amended to read as follows:

(1) For shorelines of the state, the goals and policies of the shoreline management act as set forth in RCW 90.58.020 are added as one of the goals of this chapter as set forth in RCW 36.70A.020. The goals and policies of a shoreline master program for a county or city approved under chapter 90.58 RCW or adopted under chapter 90.‑- RCW (sections 4 through 46 of this act) shall be considered an element of the county or city's comprehensive plan. All other portions of the shoreline master program for a county or city adopted under chapter 90.58 RCW, including use regulations, shall be considered a part of the county or city's development regulations.

(2) The shoreline master program shall be adopted pursuant to the procedures of chapter 90.58 RCW or under the procedures of chapter 90.‑- RCW (sections 4 through 46 of this act) rather than the procedures set forth in this chapter for the adoption of a comprehensive plan or development regulations.

NEW SECTION. Sec. 4. This chapter applies to a county or city which has adopted and implemented its comprehensive plan under chapter 36.70A RCW and which has chosen to manage its shorelines under this chapter. RCW 90.58.020 applies to a county or city which manages its shorelines under this chapter.

NEW SECTION. Sec. 5. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(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.

(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. However, 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 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;

(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 shorelands associated with (e)(i), (ii), (iv), and (v) of this subsection.

(f) "Shorelands" or "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 flood plain areas landward two hundred feet from such floodways; and all 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. 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 from the floodway.

(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, the 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. The standards shall also provide criteria to local governments and the department in developing master programs.

(b) "Master program" means 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.

(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 that 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" means 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 is not 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 shorelands, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels. A feedlot of any size, all processing plants, other activities of a commercial nature, alteration of the contour of the shorelands by leveling or filling other than that which results from normal cultivation, are not considered normal or necessary farming or ranching activities. A feedlot is an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but does not include land for growing crops or vegetation for livestock feeding or grazing, or both, nor does it include normal livestock wintering operations;

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

(vi) Construction on shorelands by an owner, lessee, or contract purchaser of a single-family residence for his or her own use or for the use of his or her family, which residence does not exceed a height of thirty-five feet above average grade level and that meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed under 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. This exception applies if either: (A) In salt waters, the fair market value of the dock does not exceed two thousand five hundred dollars; or (B) in fresh waters, the fair market value of the dock does not exceed ten thousand dollars, but if subsequent construction having a fair market value exceeding two thousand five hundred dollars occurs within five years of completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this chapter;

(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, that were created, developed, or used primarily as a part of an agricultural drainage or diking system;

(xi) Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this chapter, if:

(A) The activity does not interfere with the normal public use of the surface waters;

(B) The activity will have no significant adverse impact on the environment including, but not limited to, fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values;

(C) The activity does not involve the installation of a structure, and upon completion of the activity the vegetation and land configuration of the site are restored to conditions existing before the activity;

(D) A private entity seeking development authorization under this section first posts a performance bond or provides other evidence of financial responsibility to the local jurisdiction to ensure that the site is restored to preexisting conditions; and

(E) The activity is not subject to the permit requirements of section 42 of this act;

(xii) The process of removing or controlling an aquatic noxious weed, as defined in RCW 17.26.020, through the use of an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the department of agriculture or the department jointly with other state agencies under chapter 43.21C RCW.

NEW SECTION. Sec. 6. The shoreline management program of this chapter applies to the shorelines of the state.

NEW SECTION. Sec. 7. This chapter establishes a cooperative program of shoreline management between local government and the state. Local government has the primary responsibility for initiating the planning required by this chapter and administering the regulatory program consistent with the policy and provisions of this chapter. The department shall act in a supportive and review capacity with an emphasis on providing assistance to local government and on insuring compliance with the policy and provisions of this chapter.

NEW SECTION. Sec. 8. (1) The department shall periodically review and adopt guidelines consistent with RCW 90.58.020, containing the elements specified in section 11 of this act for:

(a) Development of master programs for regulation of the uses of shorelines; and

(b) Development of master programs for regulation of the uses of shorelines of state-wide significance.

(2) Before adopting or amending guidelines under this section, the department shall provide an opportunity for public review and comment as follows:

(a) The department shall mail copies of the proposal to all cities, counties, and federally recognized Indian tribes, and to any other person who has requested a copy, and shall publish the proposed guidelines in the Washington State Register. Comments shall be submitted in writing to the department within sixty days from the date the proposal has been published in the Washington State Register.

(b) The department shall hold at least four public hearings on the proposal in different locations throughout the state to provide a reasonable opportunity for residents in all parts of the state to present statements and views on the proposed guidelines. Notice of the hearings shall be published at least once in each of the three weeks immediately preceding the hearing in one or more newspapers of general circulation in each county of the state. If an amendment to the guidelines addresses an issue limited to one geographic area, the number and location of hearings may be adjusted consistent with the intent of this subsection to assure all parties a reasonable opportunity to comment on the proposed amendment. The department shall accept written comments on the proposal during the sixty-day public comment period and for seven days after the final public hearing.

(c) At the conclusion of the public comment period, the department shall review the comments received and modify the proposal consistent with the provisions of this chapter. The proposal shall then be published for adoption under the provisions of chapter 34.05 RCW.

(3) The department may propose amendments to the guidelines not more than once each year. At least once every five years the department shall conduct a review of the guidelines under the procedures outlined in subsection (2) of this section.

NEW SECTION. Sec. 9. Local governments shall develop or amend, within twenty-four months after the adoption of guidelines as provided in section 8 of this act, a master program for regulation of uses of the shorelines of the state consistent with the required elements of the guidelines adopted by the department.

NEW SECTION. Sec. 10. A master program, segment of a master program, or an amendment to a master program becomes effective when approved by the legislative body of the local government.

NEW SECTION. Sec. 11. (1) The master programs provided for in this chapter, when adopted or approved by the local government shall constitute use regulations for the various shorelines of the state. In preparing the master programs, and any amendments thereto, local governments shall to the extent feasible:

(a) Use a systematic interdisciplinary approach that will ensure 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) Use 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 ensure 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 guidelines adopted by rule by the department relating to the establishment of a permit system as provided in section 15(3) of this act.

(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.

NEW SECTION. Sec. 12. (1) If it appears to the director that a master program should be developed for a region of the shorelines of the state which includes lands and waters located in two or more adjacent local government jurisdictions, the director shall designate the region and notify the appropriate units of local government thereof. It is the duty of the notified units to develop cooperatively an inventory and master program in accordance with and within the time provided in section 9 of this act.

(2) A local government master program may be adopted in segments applicable to particular areas so that immediate attention may be given to those areas of the shorelines of the state in most need of a use regulation.

NEW SECTION. Sec. 13. All rules, regulations, designations, and guidelines issued by the department under RCW 90.58.070(2) or 90.58.090(4) shall be adopted or approved in accordance with the provisions of RCW 34.05.310 through 34.05.395 insofar as such provisions are not inconsistent with the provisions of this chapter. All guidelines, regulations, or designations adopted under this chapter shall be available for public inspection at the office of the department or the appropriate county and city. The term "adopt" for purposes of this section includes modifications and rescission of guidelines.

NEW SECTION. Sec. 14. To ensure that all persons and entities having an interest in the guidelines and master programs developed under this chapter are provided with a full opportunity for involvement in both their development and implementation, local governments shall comply with the public participation requirements of RCW 36.70A.140.

NEW SECTION. Sec. 15. (1) A development shall not be undertaken on the shorelines of the state unless it is consistent with the master program.

(2) A substantial development shall not be undertaken on shorelines of the state without first obtaining a permit from the local governmental 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 local government of its master program, only when the development proposed is consistent with the applicable master program.

(3) The local government shall establish a program, using the guidelines adopted by the department, for the administration and enforcement of the permit system provided in this section. The adoption and administration of the system so established shall be performed exclusively by the local government.

(4) Except as otherwise specifically provided in subsection (10) of this section, the local government shall require notification of the public of all applications for permits governed by any permit system established under subsection (3) of this section by ensuring that notice of the application is given by at least one of the following methods:

(a) 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;

(b) Posting of the notice in a conspicuous manner on the property upon which the project is to be constructed; or

(c) 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 notification of the final decision concerning an application as expeditiously as possible after the issuance of the decision, may submit the comments or requests for decisions to the local government within thirty days of the date the notice of application is issued under this subsection. The local government shall forward, in a timely manner following the issuance of a decision, a copy of the decision to each person who submits a request for the decision.

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 twenty-one days from the date the permit decision was filed as provided in subsection (6) of this section; or until all review proceedings are terminated if the proceedings were initiated within twenty-one 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) Construction may be commenced no sooner than twenty-one days after the local government's decision granting the permit is filed. If an appeal for judicial review of the decision is filed under chapter 36.70C RCW, the appellant in any action filed under the provisions of section 20 (1) and (2) of this act may request, within ten days of the filing of the appeal with the court, a hearing before the court to determine whether construction under the permit approved by the local government should not commence. 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. If, at the conclusion of the hearing, the court finds that construction under the permit would involve a significant, irreversible damaging of the environment, the court shall prohibit the permittee from commencing the construction under the approved permit until all review proceedings are final. Construction under a permit revised at the direction of the superior court may begin only on that portion of the substantial development for which the local government had originally issued the permit, and construction under a revised permit on other portions of the substantial development may not begin until after all review proceedings are terminated.

If a permittee begins construction under (a) or (b) 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 under 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 or any appellant or intervener.

(6) Any decision 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, "date of filing" as used in this section means the date of actual receipt by the department. 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 section 20 (1) and (2) of this act, 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 apply for enforcement, modification, or rescission to superior court in the county in which the permit was issued.

(9) The holder of a certification from the governor under chapter 80.50 RCW is not required to obtain a permit under this section.

(10)(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 is subject to the following procedures:

(i) The public comment period under subsection (4) of this section is 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 (a)(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;

(ii) Will serve an existing use in compliance with this chapter; and

(iii) Will not extend more than twenty-five hundred linear feet within the shorelines of the state.

NEW SECTION. Sec. 16. (1) The time requirements of this section apply to all substantial development permits and to any development authorized under a variance or conditional use permit authorized under this chapter. Upon a finding of good cause, based on the requirements and circumstances of the project proposed and consistent with the policy and provisions of the master program and this chapter, local government may adopt different time limits as a part of action on a substantial development permit.

(2) Construction activities shall be commenced or, where no construction activities are involved, the use or activity shall be commenced within two years of the effective date of a substantial development permit. However, local government may authorize a single extension for a period not to exceed one year based on reasonable factors, if a request for extension has been filed before the expiration date and notice of the proposed extension is given to parties of record on the substantial development permit and to the department.

(3) Authorization to conduct construction activities shall terminate five years after the effective date of a substantial development permit. However, local government may authorize a single extension for a period not to exceed one year based on reasonable factors, if a request for extension has been filed before the expiration date and notice of the proposed extension is given to parties of record and to the department.

(4) The effective date of a substantial development permit is the date of the last action required on the substantial development permit and all other government permits and approvals for the development that authorize the development to proceed, including all administrative and legal actions on any permits or approvals.

NEW SECTION. Sec. 17. A public or private project that is designed to improve fish or wildlife habitat or fish passage is exempt from the substantial development permit requirements of this chapter when all of the following apply:

(1) The project has been approved by the department of fish and wildlife;

(2) The project has received hydraulic project approval by the department of fish and wildlife under chapter 75.20 RCW; and

(3) The local government has determined that the project is substantially consistent with the local shoreline master program. The local government shall make such determination in a timely manner and provide it by letter to the project proponent.

NEW SECTION. Sec. 18. With respect to timber situated within two hundred feet abutting landward of the ordinary high water mark within shorelines of state-wide significance, the department or local government shall allow only selective commercial timber cutting, so that no more than thirty percent of the merchantable trees may be harvested in any ten-year period of time. However, other timber harvesting methods may be permitted in those limited instances where the topography, soil conditions, or silviculture practices necessary for regeneration render selective logging ecologically detrimental. Further, clear cutting of timber that is solely incidental to the preparation of land for other uses authorized by this chapter may be permitted.

NEW SECTION. Sec. 19. Surface drilling for oil or gas is prohibited in the waters of Puget Sound north to the Canadian boundary and the Strait of Juan de Fuca seaward from the ordinary high water mark and on all lands within one thousand feet landward from the mark.

NEW SECTION. Sec. 20. (1) Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state under section 15 of this act may seek judicial review as provided in chapter 36.70C RCW by filing a petition for review within twenty-one days of the date of filing as defined in section 15(5) of this act. Within seven days of the filing of any petition for review as provided in this subsection (1) pertaining to a final decision of a local government, the petitioner shall serve copies of the petition on the department and the office of the attorney general. The department and the attorney general may intervene to protect the public interest and ensure that the provisions of this chapter are complied with at any time within fifteen days from the date of the receipt by the department or the attorney general of a copy of the petition for review filed under this section.

(2) The department or the attorney general may seek judicial review as provided in chapter 36.70C RCW of any final decision granting a permit, or granting or denying an application for a permit issued by a local government by filing a written petition for review within twenty-one days from the date the final decision was filed as provided in section 15(6) of this act.

(3) When the department or the attorney general intervenes as provided in subsection (1) of this section, or in an appeal filed by the department or the attorney general as provided in subsection (2) of this section, the record for judicial review provided by the local government under RCW 36.70C.110 may be supplemented by the department or the attorney general as provided in RCW 36.70C.120.

(4) Any person may appeal any rules, regulations, or guidelines adopted or approved by the department to the shorelines hearings board within thirty days of the date of the adoption or approval. The board shall make a final decision within sixty days following the hearing held thereon.

(5) The board shall find the rule, regulation, or guideline to be valid and enter a final decision to that effect unless it determines that the rule, regulation, or guideline:

(a) Is clearly erroneous in light of the policy of this chapter;

(b) Constitutes an implementation of this chapter in violation of constitutional or statutory provisions;

(d) Was developed without fully considering and evaluating all material submitted to the department during public review and comment; or

(e) Was not adopted in accordance with required procedures.

(6) If the board makes a determination under subsection (5)(a) through (e) of this section, it shall enter a final decision declaring the rule, regulation, or guideline invalid, remanding the rule, regulation, or guideline to the department with a statement of the reasons in support of the determination, and directing the department to adopt, after a thorough consultation with the affected local government and any other interested party, a new rule, regulation, or guideline consistent with the board's decision.

(7) A decision of the board on the validity of a rule, regulation, or guideline is subject to review in superior court, if authorized under chapter 34.05 RCW. A petition for review of the decision of the shorelines hearings board on a rule, regulation, or guideline shall be filed within thirty days after the date of final decision by the shorelines hearings board.

NEW SECTION. Sec. 21. (1) The department, in cooperation with other state agencies and coastal local governments, shall prepare and adopt ocean use guidelines and policies to be used in reviewing shoreline master programs of local governments with coastal waters or coastal shorelines within their boundaries.

(2) After the department has adopted the guidelines required in subsection (1) of this section, counties, cities, and towns with coastal waters or coastal shorelines shall review their shoreline master programs to ensure that the programs conform with RCW 43.143.010 and 43.143.030 and with the department's ocean use guidelines.

NEW SECTION. Sec. 22. The department and local governments are authorized to adopt those rules as are necessary and appropriate to carry out the provisions of this chapter.

NEW SECTION. Sec. 23. (1) Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150, the attorney general or the attorney for the local government shall bring such injunctive, declaratory, or other actions as are necessary to ensure that no uses are made of the shorelines of the state in conflict with the provisions and programs of this chapter, and to otherwise enforce the provisions of this chapter.

(2) Any person who fails to conform to the terms of a permit issued under this chapter or who undertakes development on the shorelines of the state without first obtaining any permit required under this chapter is also subject to a civil penalty not to exceed one thousand dollars for each violation. Each permit violation or each day of continued development without a required permit constitutes a separate violation.

(3) The penalty provided for in this section shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the same from the department or local government, describing the violation with reasonable particularity and ordering the act or acts constituting the violation or violations to cease and desist or, in appropriate cases, requiring necessary corrective action to be taken within a specific and reasonable time.

(4) Within thirty days after the notice is received, the person incurring the penalty may apply in writing to the department for remission or mitigation of the penalty. Upon receipt of the application, the department or local government may remit or mitigate the penalty upon whatever terms the department or local government in its discretion deems proper. Any penalty imposed under this section by the department is subject to review by the shorelines hearings board. Any penalty imposed under this section by local government is subject to review by the local government legislative authority. Any penalty jointly imposed by the department and local government shall be appealed to the shorelines hearings board.

NEW SECTION. Sec. 24. In addition to incurring civil liability under section 23 of this act, any person found to have willfully engaged in activities on the shorelines of the state in violation of the provisions of this chapter or any of the master programs, rules, or regulations adopted under this chapter is guilty of a gross misdemeanor, and shall be punished by a fine of not less than twenty-five dollars nor more than one thousand dollars or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment. However, the fine for the third and all subsequent violations in any five-year period shall be not less than five hundred dollars nor more than ten thousand dollars. Further, fines for violations of section 42 of this act, or any rule adopted under section 42 of this act, shall be determined under section 43 of this act.

NEW SECTION. Sec. 25. Any person subject to the regulatory program of this chapter who violates any provision of this chapter or permit issued under this chapter is liable for all damage to public or private property arising from the violation, including the cost of restoring the affected area to its condition prior to violation. The attorney general or local government attorney shall bring suit for damages under this section on behalf of the state or local governments. Private persons have the right to bring suit for damages under this section on their own behalf and on the behalf of all persons similarly situated. If liability has been established for the cost of restoring an area affected by a violation the court shall make provision to assure that restoration will be accomplished within a reasonable time at the expense of the violator. In addition to such relief, including money damages, the court in its discretion may award attorneys' fees and costs of the suit to the prevailing party.

NEW SECTION. Sec. 26. In addition to any other powers granted under this chapter, the department and local governments may:

(1) Acquire lands and easements within shorelines of the state by purchase, lease, or gift, either alone or in concert with other governmental entities, when necessary to achieve implementation of master programs adopted under this chapter;

(2) Accept grants, contributions, and appropriations from any agency, public or private, or individual for the purposes of this chapter;

(3) Appoint advisory committees to assist in carrying out the purposes of this chapter;

(4) Contract for professional or technical services required by it which cannot be performed by its employees.

NEW SECTION. Sec. 27. The department is directed to cooperate fully with local governments in discharging their responsibilities under this chapter. Funds shall be available for distribution to local governments on the basis of applications for preparation of master programs. Such applications shall be submitted in accordance with regulations developed by the department. The department is authorized to make and administer grants within appropriations authorized by the legislature to any local government within the state for the purpose of developing a master shorelines program.

No grant shall be made in an amount in excess of the recipient's contribution to the estimated cost of the program.

NEW SECTION. Sec. 28. The state, through the department and the attorney general, shall represent its interest before water resource regulation management, development, and use agencies of the United States, including among others, the federal power commission, environmental protection agency, corps of engineers, department of the interior, department of agriculture, and the atomic energy commission, before interstate agencies and the courts with regard to activities or uses of shorelines of the state and the program of this chapter. Where federal or interstate agency plans, activities, or procedures conflict with state policies, all reasonable steps available shall be taken by the state to preserve the integrity of its policies.

NEW SECTION. Sec. 29. (1) Nothing in this chapter constitutes authority for requiring or ordering the removal of any structures, improvements, docks, fills, or developments placed in navigable waters prior to December 4, 1969, and the consent and authorization of the state of Washington to the impairment of public rights of navigation, and corollary rights incidental thereto, caused by the retention and maintenance of the structures, improvements, docks, fills, or developments are granted. However, the consent given in this section shall not relate to any structures, improvements, docks, fills, or developments placed on tidelands, shorelands, or beds underlying the waters that are in trespass or in violation of state law.

(2) Nothing in this section shall be construed as altering or abridging any private right of action, other than a private right that is based upon the impairment of public rights consented to in subsection (1) of this section.

(3) Nothing in this section shall be construed as altering or abridging the authority of the state or local governments to suppress or abate nuisances or to abate pollution.

(4) Subsection (1) of this section applies to any case pending in the courts of this state on June 1, 1971, relating to the removal of structures, improvements, docks, fills, or developments based on the impairment of public navigational rights.

NEW SECTION. Sec. 30. The provisions of this chapter are applicable to those counties and public and municipal corporations that have chosen to manage shorelines under this chapter and to all shorelines of the state owned or administered by them.

NEW SECTION. Sec. 31. The restrictions imposed by this chapter shall be considered by the county assessor in establishing the fair market value of the property.

NEW SECTION. Sec. 32. The department is designated the state agency responsible for the program of regulation of the shorelines of the state, including coastal shorelines and the shorelines of the inner tidal waters of the state, and is authorized to cooperate with the federal government and sister states and to receive benefits of any statutes of the United States whenever enacted that relate to the programs of this chapter.

NEW SECTION. Sec. 33. Additional shorelines of the state shall be designated shorelines of state-wide significance only by affirmative action of the legislature.

The director may however, from time to time, recommend to the legislature areas of the shorelines of the state that have state-wide significance relating to special economic, ecological, educational, developmental, recreational, or aesthetic values to be designated as shorelines of state-wide significance.

Prior to making any such recommendation the director shall hold a public hearing in the county or counties where the shoreline under consideration is located. It is the duty of the county commissioners of each county where such a hearing is conducted to submit their views with regard to a proposed designation to the director at such date as the director determines but in no event shall the date be later than sixty days after the public hearing in the county.

NEW SECTION. Sec. 34. No permit shall be issued under this chapter for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining the shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served.

NEW SECTION. Sec. 35. All state agencies, counties, and public and municipal corporations shall review administrative and management policies, regulations, plans, and ordinances relative to lands under their respective jurisdictions adjacent to the shorelines of the state so as to achieve a use policy on the land consistent with the policy of this chapter, the guidelines, and the master programs for the shorelines of the state. The department may develop recommendations for land use control for the lands. Local governments shall, in developing use regulations for such areas, take into consideration any recommendations developed by the department as well as any other state agencies or units of local government.

NEW SECTION. Sec. 36. Nothing in this chapter affects any rights established by treaty to which the United States is a party.

NEW SECTION. Sec. 37. The procedural requirements of this chapter do not apply to any person conducting a remedial action at a facility under a consent decree, order, or agreed order issued under chapter 70.105D RCW, or to the department when it conducts a remedial action under chapter 70.105D RCW. The department shall ensure compliance with the substantive requirements of this chapter through the consent decree, order, or agreed order issued under chapter 70.105D RCW, or during the department-conducted remedial action, through the procedures developed by the department under RCW 70.105D.090.

NEW SECTION. Sec. 38. Nothing in this chapter obviates any requirement to obtain any permit, certificate, license, or approval from any state agency or local government.

NEW SECTION. Sec. 39. All state and local agencies with authority under this chapter to issue permits or other authorizations in connection with emergency water withdrawals and facilities authorized under RCW 43.83B.410 shall expedite the processing of the permits or authorizations in keeping with the emergency nature of such requests and shall provide a decision to the applicant within fifteen calendar days of the date of application.

NEW SECTION. Sec. 40. 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. 41. Watershed restoration projects as defined in RCW 89.08.460 are exempt from the requirement to obtain a substantial development permit. Local government shall review the projects for consistency with the locally adopted shoreline master program in an expeditious manner and shall issue its decision along with any conditions within forty-five days of receiving a complete consolidated application form from the applicant. No fee may be charged for accepting and processing applications for watershed restoration projects as used in this section.

NEW SECTION. Sec. 42. (1) As used in this section:

(a) "Exploration activity" means reconnaissance or survey work related to gathering information about geologic features and formations underlying or adjacent to marine waters;

(b) "Marine waters" include the waters of Puget Sound north to the Canadian border, the waters of the Strait of Juan de Fuca, the waters between the western boundary of the state and the ordinary high water mark, and related bays and estuaries;

(2) A person desiring to perform oil or natural gas exploration activities by vessel located on or within marine waters of the state shall first obtain a permit from the department. The department may approve an application for a permit only if it determines that the proposed activity will not:

(a) Interfere materially with the normal public uses of the marine waters of the state;

(b) Interfere with activities authorized by a permit issued under section 15(2) of this act;

(d) Violate water quality standards established by the department; or

(e) Create a public nuisance.

(3) Decisions on an application under subsection (2) of this section are subject to review only by the pollution control hearings board under chapter 43.21B RCW.

(4) This section does not apply to activities conducted by an agency of the United States or the state of Washington.

(5) This section does not lessen, reduce, or modify section 19 of this act.

(6) The department may adopt rules necessary to implement this section.

(7) The attorney general shall enforce this section.

NEW SECTION. Sec. 43. (1) Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150, a person who violates section 42 of this act, or any rule adopted under section 42 of this act, is subject to a penalty in an amount of up to five thousand dollars a day for every such violation. Each and every such violation is a separate and distinct offense, and in case of a continuing violation, every day's continuance is a separate and distinct violation. Every act of commission or omission that procures, aids, or abets in the violation is considered a violation under the provisions of this section and subject to the penalty provided for in this section.

(2) The penalty shall be imposed by a notice in writing, either by certified mail with return receipt requested or by personal service, to the person incurring the penalty from the director or the director's representative describing the violation with reasonable particularity. The director or the director's representative may, upon written application therefor received within fifteen days after notice imposing any penalty is received by the person incurring the penalty, and when deemed to carry out the purposes of this chapter, remit or mitigate any penalty provided for in this section upon such terms as he or she deems proper, and has authority to ascertain the facts upon all such applications in such manner and under such regulations as he or she may deem proper.

(3) Any person incurring any penalty under this section may appeal the penalty to the hearings board as provided for in chapter 43.21B RCW. Such appeals shall be filed within thirty days of receipt of notice imposing any penalty unless an application for remission or mitigation is made to the department. When an application for remission or mitigation is made, such appeals shall be filed within thirty days of receipt of notice from the director or the director's representative setting forth the disposition of the application. Any penalty imposed under this section becomes due and payable thirty days after receipt of a notice imposing the same unless application for remission or mitigation is made or an appeal is filed. When an application for remission or mitigation is made, any penalty incurred under this section becomes due and payable thirty days after receipt of notice setting forth the disposition of the application unless an appeal is filed from the disposition. Whenever an appeal of any penalty incurred under this section is filed, the penalty becomes due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part.

(4) If the amount of any penalty is not paid to the department within thirty days after it becomes due and payable, the attorney general, upon the request of the director, shall bring an action in the name of the state of Washington in the superior court of Thurston county or of any county in which the violator may do business, to recover such penalty. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action except as otherwise provided in this chapter. All penalties recovered under this section shall be paid into the state treasury and credited to the general fund.

NEW SECTION. Sec. 44. The department shall consult with affected state agencies, local governments, Indian tribes, and the public prior to responding to federal coastal zone management consistency certifications for uses and activities occurring on the federal outer continental shelf.

NEW SECTION. Sec. 45. With respect to the national scenic area, as defined in the Columbia River Gorge national scenic area act, P.L. 99-663, the exercise of any power or authority by a local government or the department under this chapter is subject to and in conformity with the requirements of chapter 43.97 RCW, including the management plan regulations and ordinances adopted by the Columbia River Gorge commission under the compact.

NEW SECTION. Sec. 46. This chapter is exempted from the rule of strict construction and shall be liberally construed to give full effect to the objectives and purposes for which it was enacted.

NEW SECTION. Sec. 47. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 48. Sections 4 through 46 of this act constitute a new chapter in Title 90 RCW.

NEW SECTION. Sec. 49. This act takes effect July 1, 1998.