BILL REQ. #:  S-5016.1 

READ FIRST TIME 02/03/06.   

     AN ACT Relating to clarifying the best available science requirements to protect critical areas; and amending RCW 36.70A.172, 36.70A.280, 36.70A.290, and 36.70A.300.

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

Sec. 1   RCW 36.70A.172 and 1995 c 347 s 105 are each amended to read as follows:
     (1) In designating and protecting critical areas under this chapter, counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas as potentially impacted by future development activities. In addition, counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries.
     (2) If it determines that advice from scientific or other experts is necessary or will be of substantial assistance in reaching its decision, a growth management hearings board may retain scientific or other expert advice to assist in reviewing a petition under RCW 36.70A.290 that involves critical areas. The growth management hearings boards are directed to adopt procedures and criteria in consultation with cities and counties planning under this chapter for retaining scientific or other experts under this section and RCW 36.70A.270.
     (3) In the development of critical areas policies and development regulations considered for adoption to protect the functions and values of critical areas as potentially impacted by future development activities, counties and cities must address each of the following on the record:
     (a) To demonstrate that the best available science was included:
     (i) The specific policies and development regulations adopted to protect the functions and values of critical areas as potentially impacted by future development activities; and
     (ii) The sources of best available scientific information included in the decision making; and
     (b) Any other information, including legal, social, cultural, economic, and political information, and other programs that may have been included in developing critical areas policies and regulations.
     (4)(a) The department, in collaboration with other state agencies with jurisdiction and expertise, may adopt written management recommendations for optional use by cities and counties in protecting the functions and values of one or more critical areas as potentially impacted by future development activities listed in RCW 36.70A.030(5).
     (b) State agencies must include the best available science in developing management recommendations for protecting the functions and values of critical areas as potentially impacted by future development activities, with consideration of regional differences among critical areas.
     (c) Management recommendations for cities and counties proposed by the department in collaboration with other state agencies under this subsection must be approved through the following process:
     (i) The proposed management recommendations shall be submitted for technical review by scientists and other professionals with expertise in the relevant scientific and professional disciplines. The reviewing scientists and other professionals with expertise shall be from organizations including but not limited to academic institutions; federal, state, local, and tribal governments; and the private sector. The results of this technical review must be summarized in writing and made available on the department's web site;
     (ii) Following completion of the technical review process in (c)(i) of this subsection, notice of the proposed management recommendations must be published in the state register, and the department must maintain the full text of the proposed management recommendations on its web site and accept public comment for a minimum of sixty days from the date of publication. Comments received during this public review period must be made available on the department's web site, and will be considered by the department, in collaboration with other state agencies with jurisdiction and expertise. Summaries may be provided in lieu of voluminous or repetitive comments;
     (iii) At the close of the technical review process and the public review period, the department may adopt the management recommendations by causing a notice of proposed management recommendations for protecting the functions and values of critical areas as potentially impacted by future development activities to be published in the state register and on the department's web site. Notice shall also be provided to persons submitting comments on the proposed management recommendations during the public review period; and
     (iv) At the end of sixty days from the date the notice of proposed management recommendations for protecting the functions and values of critical areas as potentially impacted by future development activities is published in the state register, if no petition for review of the management recommendation has been filed under RCW 36.70A.290, the department shall cause a notice of adoption of final management recommendations for protecting the functions and values of critical areas as potentially impacted by future development activities to be published in the state register and on the department's web site. If a petition for review is filed within sixty days, the publication of a notice of final management recommendations for protecting the functions and values of critical areas as potentially impacted by future development activities shall be delayed until the petition is finally resolved and the management recommendations are found to comply with this chapter.
     (d) At least once every five years, the department, in collaboration with other state agencies with jurisdiction and expertise, shall review and, if necessary to incorporate best available science that has become available or otherwise to comply with this chapter, update the management recommendations adopted under this subsection. The department shall cause a notice of proposed update of management recommendations for protecting the functions and values of critical areas as potentially impacted by future development activities or a notice of a decision not to update management recommendations for protecting the functions and values of critical areas as potentially impacted by future development activities to be published in the state register and on the department's web site.
     (i) Following publication of a notice of proposed update of management recommendations, amendments to the management recommendations shall be adopted through the process set forth in (c) of this subsection and shall be appealable in the same manner and to the same extent as the initial management recommendations.
     (ii) Following publication of a notice of a decision not to update management recommendations, any interested person may file a petition for review of the department's decision within the time provided in RCW 36.70A.290(3). The sole issue before the growth management hearings board shall be whether the department's decision not to update management recommendations under (d) of this subsection was clearly erroneous.
     (e) Where a county or city states specifically that it has chosen to develop and adopt all or a portion of its critical areas policies and regulations through application of final management recommendations adopted under this subsection, the growth management hearings board or a reviewing court shall review the county or city policies and regulations only for consistency with those portions of the final management recommendations specified by the county or city. The board or court shall review all other portions of critical areas policies and regulations for compliance with subsections (1) and (3) of this section.
     (f) Where a county or city chooses not to apply final management recommendations adopted under this section when developing its critical areas policies and regulations, the growth management hearings board or a reviewing court shall review the policies and regulations for compliance with subsections (1) and (3) of this section.
     (g) A growth management hearings board or a reviewing court shall not consider final management recommendations adopted under this subsection to be the only means of complying with this chapter's critical areas protection requirements and best available science requirements, nor shall a board or court consider final management recommendations to establish a minimum standard for identifying the best available science or protecting the functions and values of critical areas as potentially impacted by future development activities.
     (h) This subsection does not alter the requirements in RCW 36.70A.106.

Sec. 2   RCW 36.70A.280 and 2003 c 332 s 2 are each amended to read as follows:
     (1) A growth management hearings board shall hear and determine only those petitions alleging either:
     (a) That a state agency, county, or city planning under this chapter is not in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to the adoption of shoreline master programs or amendments thereto, or chapter 43.21C RCW as it relates to plans, development regulations, or amendments, adopted under RCW 36.70A.040 or chapter 90.58 RCW; ((or))
     (b) That the twenty-year growth management planning population projections adopted by the office of financial management pursuant to RCW 43.62.035 should be adjusted; or
     (c) That management recommendations adopted by the department under RCW 36.70A.172(4) do not comply with the requirements of RCW 36.70A.172(4), or that the department's decision not to update management recommendations under RCW 36.70A.172(4)(d) is clearly erroneous. Any appeal under this subsection (1)(c) must be heard by a panel comprised of at least two members from each of the three growth management hearings boards.
     (2) Except for petitions filed under subsection (1)(c) of this section, a petition may be filed only by: (a) The state, or a county or city that plans under this chapter; (b) a person who has participated orally or in writing before the county or city regarding the matter on which a review is being requested; (c) a person who is certified by the governor within sixty days of filing the request with the board; or (d) a person qualified pursuant to RCW 34.05.530. A petition may be filed under subsection (1)(c) of this section only by a person who has submitted comments during the public review period specified in RCW 36.70A.172(4)(c)(ii).
     (3) For purposes of this section "person" means any individual, partnership, corporation, association, state agency, governmental subdivision or unit thereof, Indian tribe, or public or private organization or entity of any character.
     (4) To establish participation standing under subsection (2)(b) of this section, a person must show that his or her participation before the county or city was reasonably related to the person's issue as presented to the board.
     (5) When considering a possible adjustment to a growth management planning population projection prepared by the office of financial management, a board shall consider the implications of any such adjustment to the population forecast for the entire state.
     The rationale for any adjustment that is adopted by a board must be documented and filed with the office of financial management within ten working days after adoption.
     If adjusted by a board, a county growth management planning population projection shall only be used for the planning purposes set forth in this chapter and shall be known as a "board adjusted population projection". None of these changes shall affect the official state and county population forecasts prepared by the office of financial management, which shall continue to be used for state budget and planning purposes.

Sec. 3   RCW 36.70A.290 and 1997 c 429 s 12 are each amended to read as follows:
     (1) All requests for review to a growth management hearings board shall be initiated by filing a petition that includes a detailed statement of issues presented for resolution by the board. The board shall render written decisions articulating the basis for its holdings. The board shall not issue advisory opinions on issues not presented to the board in the statement of issues, as modified by any prehearing order.
     (2) All petitions relating to whether or not an adopted comprehensive plan, development regulation, or permanent amendment thereto, is in compliance with the goals and requirements of this chapter or chapter 90.58 or 43.21C RCW must be filed within sixty days after publication by the legislative bodies of the county or city.
     (a) Except as provided in (c) of this subsection, the date of publication for a city shall be the date the city publishes the ordinance, or summary of the ordinance, adopting the comprehensive plan or development regulations, or amendment thereto, as is required to be published.
     (b) Promptly after adoption, a county shall publish a notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.
     Except as provided in (c) of this subsection, for purposes of this section the date of publication for a county shall be the date the county publishes the notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.
     (c) For local governments planning under RCW 36.70A.040, promptly after approval or disapproval of a local government's shoreline master program or amendment thereto by the department of ecology as provided in RCW 90.58.090, the local government shall publish a notice that the shoreline master program or amendment thereto has been approved or disapproved by the department of ecology. For purposes of this section, the date of publication for the adoption or amendment of a shoreline master program is the date the local government publishes notice that the shoreline master program or amendment thereto has been approved or disapproved by the department of ecology.
     (3) All petitions relating to whether management recommendations adopted by the department under RCW 36.70A.172(4) comply with the requirements of RCW 36.70A.172(4) must be filed within sixty days after the notice of proposed management recommendations for protecting the functions and values of critical areas as potentially impacted by future development activities is published in the state register pursuant to RCW 36.70A.172(4)(c)(iii).
     (4) Unless the board dismisses the petition as frivolous or finds that the person filing the petition lacks standing, or the parties have filed an agreement to have the case heard in superior court as provided in RCW 36.70A.295, the board shall, within ten days of receipt of the petition, set a time for hearing the matter.
     (((4))) (5) The board shall base its decision on the record developed by the city, county, or the state and supplemented with additional evidence if the board determines that such additional evidence would be necessary or of substantial assistance to the board in reaching its decision.
     (((5))) (6) The board, shall consolidate, when appropriate, all petitions involving the review of the same comprehensive plan or the same development regulation or regulations.

Sec. 4   RCW 36.70A.300 and 1997 c 429 s 14 are each amended to read as follows:
     (1) The board shall issue a final order that shall be based exclusively on whether or not a state agency, county, or city is in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW.
     (2)(a) Except as provided in (b) and (c) of this subsection, the final order shall be issued within one hundred eighty days of receipt of the petition for review, or, if multiple petitions are filed, within one hundred eighty days of receipt of the last petition that is consolidated.
     (b) The board may extend the period of time for issuing a decision to enable the parties to settle the dispute if additional time is necessary to achieve a settlement, and (i) an extension is requested by all parties, or (ii) an extension is requested by the petitioner and respondent and the board determines that a negotiated settlement between the remaining parties could resolve significant issues in dispute. The request must be filed with the board not later than seven days before the date scheduled for the hearing on the merits of the petition. The board may authorize one or more extensions for up to ninety days each, subject to the requirements of this section.
     (c) In a review under RCW 36.70A.280(1)(c), the board shall issue a final order within two hundred seventy days of receipt of the petition for review, or, if multiple petitions are filed, within one hundred eighty days of receipt of the last petition that is consolidated. The board may extend this deadline as provided in (b) of this subsection.
     (3) In the final order, the board shall either:
     (a) Find that the state agency, county, or city is in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW; or
     (b) Find that the state agency, county, or city is not in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to the adoption or amendment of shoreline master programs, or chapter 43.21C RCW as it relates to adoption of plans, development regulations, and amendments thereto, under RCW 36.70A.040 or chapter 90.58 RCW, in which case the board shall remand the matter to the affected state agency, county, or city. The board shall specify a reasonable time not in excess of one hundred eighty days, or such longer period as determined by the board in cases of unusual scope or complexity, within which the state agency, county, or city shall comply with the requirements of this chapter. The board may require periodic reports to the board on the progress the jurisdiction is making towards compliance.
     (4) Unless the board makes a determination of invalidity as provided in RCW 36.70A.302, a finding of noncompliance and an order of remand shall not affect the validity of comprehensive plans and development regulations during the period of remand.
     (5) Any party aggrieved by a final decision of the hearings board may appeal the decision to superior court as provided in RCW 34.05.514 or 36.01.050 within thirty days of the final order of the board.