Brief Summary of Bill

• Defines "best available science" in the Growth Management Act (GMA).

• Allows local governments to choose within a range of scientific information when complying with specific GMA requirements.

• Allows local governments to employ innovative and experimental approaches when satisfying the GMA requirement to protect critical areas.

Majority Report: Do pass. Signed by 7 members: Representatives Romero, Chair; D. Simpson, Vice Chair; Jarrett, Assistant Ranking Minority Member; Clibborn, Edwards, Moeller and Upthegrove.

Minority Report: Do not pass. Signed by 4 members: Representatives Schindler, Ranking Minority Member; Ahern, Ericksen and Mielke.

The Growth Management Act (GMA) establishes a comprehensive land use planning framework for county and city governments in Washington. Counties and cities meeting specific population and growth criteria are required to comply with the major requirements of the GMA. Counties not meeting these criteria may choose to plan under the GMA. Twenty-nine of 39 counties, and the cities within those 29 counties, are required to or have chosen to comply with the major requirements of the GMA (GMA jurisdictions).

In addition to other GMA requirements, all local governments must designate and protect critical areas. Critical areas are defined by statute to include wetlands, aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. Each county and city must include the "best available science" in developing policies and development regulations to protect the functions and values of critical areas. The GMA does not define "best available science."

"Best available science" is defined by bifurcating the term. "Best available" means science that applies to the physical and biological setting under consideration and is practically and economically feasible to be implemented. A city or county is not required to conduct or commission new scientific studies to fill gaps in existing scientific information.

"Science" is defined as a process involving sound methods to reach conclusions to understand the workings of the natural world. The characteristics of a sound scientific process include:

• findings that have been critically reviewed by qualified scientific experts in the field;

• conclusions that are logical and the inferences drawn from those conclusions reasonable given the data and methods;

• data that has been analyzed using standard or peer reviewed quantitative or statistical methods;

• data and findings that are considered in their proper physical and biological context; and

• assumptions, analytical techniques, and conclusions that are referenced to relevant, credibly sound scientific literature.

Sources of sound scientific information may incorporate fewer than the generally accepted characteristics of science, as the process is defined above. The greater the number of characteristics incorporated into the process, the more sound and reliable the conclusions are likely to be. Local governments are afforded discretion in making valid scientific information choices, provided the range of discretion corresponds to the range of valid science.

Local governments may employ innovative approaches to protect critical areas when the approaches include the best available science.

Local governments also may employ experimental approaches to protect critical areas. If, however, a local government bases a management decision regarding a critical area on information that does not satisfy all of the characteristics of science, or on conflicting information, the jurisdiction must comply with specific monitoring and management requirements to ensure protection of critical area functions and values.

Effective Date: The bill takes effect 90 days after adjournment of session in which bill is passed.

Testimony For: This bill establishes a definition of "best available science" (BAS) in statute to provide clarity and guidance to local governments. This bill includes flexible provisions, ensures the use of sound science, and is one of the consensus bills resulting from a GMA working group that examined related issues during the summer. All cities are required to review and, if necessary, update critical area regulations using BAS. The intent of this legislation is to give assurances to communities when making decisions based upon BAS. Flexibility is needed to apply BAS in cities, as much of the existing scientific information for critical areas and natural resource lands doesn't apply in urbanized areas. This bill requires BAS to apply to the local setting and to be practically and economically feasible for local governments and land owners. This bill allows experimental approaches to satisfying BAS requirements. The bill does not compromise on the protection of critical areas or natural resource lands.

Testimony Against: This bill will create more confusion, not clarity. Much of the language of the bill is ambiguous and may lead to greater discretion and confusion among growth management hearings boards (GMHBs) and courts when applying the BAS requirements of the GMA. The bill may encourage politically-active, results-oriented scientific studies. This bill may be an attempt to codify decisions of the courts and GMHBs. The BAS requirements of the GMA need to be balanced against other goals in the act, but this bill does not achieve that balance. The language and policy implications of the bill are problematic. Implementing provisions of this bill, especially the permitted experimental or innovative approaches, will be extremely costly and burdensome to urban jurisdictions.

Persons Testifying: (In support) Rep. Upthegrove, prime sponsor; Dave Williams, Association of Washington Cities; Dan Wood, Washington State Farm Bureau; and Genesee Adkins, 1000 Friends of Washington.

(Opposed) Timothy Harris, Building Industry Association of Washington; and Kristen Sawin, Association of Washington Business.