Background:

Growth Management Act - Introduction.

The Growth Management Act (GMA or Act) is the comprehensive land use planning framework for county and city governments in Washington. Enacted in 1990 and 1991, the GMA establishes numerous requirements for local governments obligated by mandate or choice to fully plan under the Act (planning jurisdictions) and a reduced number of directives for all other counties and cities. Twenty-nine of Washington's 39 counties, and the cities within those counties, are planning jurisdictions.

Directives applying to all counties and cities require the designation and protection of critical areas, a term defined in statute to include the following areas and ecosystems:

wetlands;
areas with a critical recharging effect on aquifers used for potable water;
fish and wildlife habitat conservation areas;
frequently flooded areas; and
geologically hazardous areas.

The protection of critical areas is accomplished through mandatory development regulations enacted by counties and cities. These development regulations are often referred to as "critical area ordinances."

Comprehensive Land Use Plans, Development Regulations, and Selected Elements.

The GMA directs planning jurisdictions to adopt internally consistent comprehensive land use plans that are generalized, coordinated land use policy statements of the governing body. Comprehensive plans must address specified planning elements, each of which is a subset of a comprehensive plan. The implementation of comprehensive plans occurs through development regulations mandated by the GMA.

Shoreline Management Act.

The Shoreline Management Act (SMA) governs uses of state shorelines. The SMA enunciates state policy to provide for shoreline management by planning for and fostering "all reasonable and appropriate uses." The SMA prioritizes public shoreline access and enjoyment, and creates preference criteria, listed in prioritized order, that must be used by state and local governments in regulating shoreline uses.

The SMA involves a cooperative regulatory approach between local governments and the state. At the local level, the SMA regulations are developed in local shoreline master programs (master programs). All counties and cities with shorelines of the state, a term defined in the SMA, are required to adopt master programs that regulate land use activities in shoreline areas of the state. Counties and cities are also required to enforce master programs within their jurisdictions. Master programs must be consistent with guidelines adopted by the Department of Ecology (DOE), and the programs, and segments of or amendments to, become effective when approved by the DOE.

The DOE must approve the segment of a master program relating to critical areas if the segment is consistent with specific requirements of the SMA and applicable shoreline guidelines, and if the segment provides a level of protection of critical areas that is at least equal to that provided by the local government's adopted and amended critical areas ordinances.

Policy Integration.

In 1995 the Legislature enacted environmental regulatory reform legislation that implemented recommendations of the Governor's Task Force on Regulatory Reform. The legislation added the goals and policies of the SMA as an additional goal to the planning goals of the GMA. The legislation also specified that the goals and policies of a master program required by the SMA were deemed an element of a planning jurisdiction's comprehensive plan.

2003 Legislation.

Legislation adopted in 2003 (i.e., ESHB 1933, enacted as chapter 321, Laws of 2003) in response to a 2003 decision of the Central Puget Sound Growth Management Hearings Board, established new provisions pertaining to the jurisdiction, implementation, and partial integration of the GMA and the SMA. Among other provisions, the legislation specified that as of the date the DOE approves a local government's master program adopted under applicable shoreline guidelines, the protection of critical areas within shorelines of the state must be accomplished only through the local government's master program and, with limited exceptions, must not be subject to the procedural and substantive requirements of the GMA.

The 2003 legislation also specified that critical areas within shorelines of the state that have been identified as meeting the definition of critical areas and are subject to a master program adopted under applicable shoreline guidelines must not be subject to the procedural and substantive requirements of the GMA. Limited exceptions to this directive were established in ESHB 1933.

Furthermore, ESHB 1933 specified that master programs must provide a level of protection to critical areas located within shorelines of the state that is at least equal to the level of protection provided to critical areas by the local government's adopted and amended critical area ordinances.

Supreme Court Action.

On July 31, 2008, the Washington Supreme Court (Supreme Court) ruled in Futurewise v. Western Washington Growth Management Hearings Board that a superior court erred when it reversed a decision of the Western Washington Growth Management Hearings Board and held that the GMA controls procedures inside shorelines until new SMA plans are formulated and approved.

In its 2008 trial court reversal, the Supreme Court held that the provision of ESHB 1933 specifying that as of the date the DOE approves a local government's master program adopted under applicable shoreline guidelines, the protection of critical areas within shorelines of the state must be accomplished only through the local government's master program, is curative and immediate, not prospective. The Supreme Court further held that a prospective interpretation of ESHB 1933 would change the effective date of the ESHB 1933 from July 27, 2003, to a much later date based upon the DOE's processing and approving of master programs, and that a prospective interpretation would, in part, contradict the clear language and intent of the Legislature in ESHB 1933.

Summary:

With limited exceptions, development regulations adopted under the GMA to protect critical areas within shorelines of the state apply within shorelines of the state until the DOE approves one of the following:

a comprehensive master program update, a term defined to mean a master program that fully achieves the procedural and substantive requirements of guidelines adopted by the DOE, and subsequent amendments, that are effective January 17, 2004;
a segment of a master program relating to critical areas; or
a new or amended master program, provided the master program is approved by the DOE on or after March 1, 2002.

The adoption or update of development regulations to protect critical areas under the GMA prior to the DOE approval of a master program update is not a comprehensive or segment update to a master program.

Until the DOE approves a master program or segment thereof as provided above, a use or structure legally located within shorelines of the state that was established or vested on or before the effective date of the local government's development regulations to protect critical areas may continue as a conforming use and may be redeveloped or modified if the redevelopment or modification is consistent with the local government's master program, and if the local government determines that the proposed action will result in no net loss of shoreline ecological functions. The local government may waive this determination requirement if the redevelopment or modification is consistent with the master program and the local government's development regulations to protect critical areas. An agricultural activity that does not expand the area being used for the agricultural activity is not a redevelopment or modification.

Upon approval by the DOE of a master program or critical area segment of a master program, critical areas within shorelines of the state are protected under the SMA and, with limited exceptions, are not subject to the procedural and substantive requirements of the GMA.

Master programs must provide a level of protection to critical areas within shorelines of the state that assures no net loss of shoreline ecological functions necessary to sustain shoreline natural resources.

A specific provision of the GMA act is expressly identified as governing the relationship between master programs and regulations to protect critical areas that are adopted under the GMA.

House	58	39
Senate	35	10