BILL REQ. #:  Z-0613.1 

Read first time 01/27/09.   Referred to Committee on Local Government & Housing.

     AN ACT Relating to clarifying the integration of shoreline management act policies with the growth management act; amending RCW 36.70A.480 and 90.58.090; and creating a new section.

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

NEW SECTION.  Sec. 1   This act is intended to affirm the legislature's intent relating to HB 1933 adopted in 2003. This act is intended to clarify that:
     (1) Wetlands and fish and wildlife habitat conservation areas within the jurisdiction of the shoreline management act must be governed by the shoreline management act as described in subsection (2) of this section and that critical areas outside the jurisdiction of the shoreline management act must be governed by the growth management act.
     (2) As provided in RCW 36.70A.480 and 90.58.090:
     (a) Except as provided in (b) of this subsection, the shoreline management act applies to wetlands and fish and wildlife habitat conservation areas only upon department of ecology approval of a comprehensive updated shoreline master program meeting the requirements of chapter 90.58 RCW and department of ecology guidelines effective on or after January 17, 2004; and
     (b) If a local government requests department of ecology approval of a shoreline master program segment relating to wetlands and fish and wildlife habitat conservation areas, the intended separation of authority must occur upon department of ecology approval of a shoreline master program segment protecting wetlands and fish and wildlife habitat conservation areas that meets the requirements of chapter 90.58 RCW and department of ecology guidelines effective on or after January 17, 2004.
     (3) A local government's critical area regulations adopted under chapter 36.70A RCW that were in effect on January 14, 2004, or that were amended on or after January 14, 2004, apply within the shoreline jurisdiction until the local government's shoreline master program or shoreline master program segment has been approved as provided in RCW 36.70A.480 and 90.58.090.

Sec. 2   RCW 36.70A.480 and 2003 c 321 s 5 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 without creating an order of priority among the fourteen goals. The goals and policies of a shoreline master program for a county or city approved under chapter 90.58 RCW 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 rather than the goals, policies, and procedures set forth in this chapter for the adoption of a comprehensive plan or development regulations.
     (3) The policies, goals, and provisions of chapter 90.58 RCW and applicable guidelines shall be the sole basis for determining compliance of a shoreline master program with this chapter except as the shoreline master program is required to comply with the internal consistency provisions of RCW 36.70A.070, 36.70A.040(4), 35.63.125, and 35A.63.105.
     (a) As of the date the department of ecology approves a local government's shoreline master program adopted or updated under ((applicable)) shoreline guidelines effective on or after January 17, 1994, the protection of ((critical)) wetlands and fish and wildlife habitat conservation areas, as defined by RCW 36.70A.030(5), located within shorelines of the state:
     (i) Shall be accomplished only through the local government's shoreline master program and shall not be subject to the procedural and substantive requirements of this chapter, except as provided in subsection (6) of this section((.
     (b) Critical areas within shorelines of the state that have been identified as meeting the definition of critical areas as defined by RCW 36.70A.030(5), and that are subject to a shoreline master program adopted under applicable shoreline guidelines)); and
     (ii) Shall not be subject to the procedural and substantive requirements of this chapter, except as provided in subsection (6) of this section.
     (b) Nothing in chapter 321, Laws of 2003 is intended to affect whether or to what extent agricultural activities, as defined in RCW 90.58.065, are subject to chapter 36.70A RCW.
     (c) The provisions of RCW 36.70A.172 shall not apply to the adoption or subsequent amendment of a local government's shoreline master program and shall not be used to determine compliance of a local government's shoreline master program with chapter 90.58 RCW and applicable guidelines. Nothing in this section, however, is intended to limit or change the quality of information to be applied in protecting critical areas within shorelines of the state, as required by chapter 90.58 RCW and applicable guidelines.
     (4) Shoreline master programs shall provide a level of protection to ((critical)) wetlands and fish and wildlife habitat conservation 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 critical area ordinances adopted and thereafter amended pursuant to RCW 36.70A.060(2))) assures no net loss of shoreline ecological functions necessary to sustain shoreline natural resources as defined by agency guidelines effective on or after January 17, 2004.
     (5) Shorelines of the state shall not be considered critical areas under this chapter except to the extent that specific areas located within shorelines of the state qualify for critical area designation based on the definition of critical areas provided by RCW 36.70A.030(5) and have been designated as such by a local government pursuant to RCW 36.70A.060(2).
     (6) If a local jurisdiction's master program does not include land necessary for buffers for critical areas that occur within shorelines of the state, as authorized by RCW 90.58.030(2)(f), then the local jurisdiction shall continue to regulate those critical areas and their required buffers pursuant to RCW 36.70A.060(2).

Sec. 3   RCW 90.58.090 and 2003 c 321 s 3 are each amended to read as follows:
     (1) A master program, segment of a master program, or an amendment to a master program shall become effective when approved by the department. Within the time period provided in RCW 90.58.080, each local government shall have submitted a master program, either totally or by segments, for all shorelines of the state within its jurisdiction to the department for review and approval.
     (2) Upon receipt of a proposed master program or amendment, the department shall:
     (a) Provide notice to and opportunity for written comment by all interested parties of record as a part of the local government review process for the proposal and to all persons, groups, and agencies that have requested in writing notice of proposed master programs or amendments generally or for a specific area, subject matter, or issue. The comment period shall be at least thirty days, unless the department determines that the level of complexity or controversy involved supports a shorter period;
     (b) In the department's discretion, conduct a public hearing during the thirty-day comment period in the jurisdiction proposing the master program or amendment;
     (c) Within fifteen days after the close of public comment, request the local government to review the issues identified by the public, interested parties, groups, and agencies and provide a written response as to how the proposal addresses the identified issues;
     (d) Within thirty days after receipt of the local government response pursuant to (c) of this subsection, make written findings and conclusions regarding the consistency of the proposal with the policy of RCW 90.58.020 and the applicable guidelines, provide a response to the issues identified in (c) of this subsection, and either approve the proposal as submitted, recommend specific changes necessary to make the proposal approvable, or deny approval of the proposal in those instances where no alteration of the proposal appears likely to be consistent with the policy of RCW 90.58.020 and the applicable guidelines. The written findings and conclusions shall be provided to the local government, all interested persons, parties, groups, and agencies of record on the proposal;
     (e) If the department recommends changes to the proposed master program or amendment, within thirty days after the department mails the written findings and conclusions to the local government, the local government may:
     (i) Agree to the proposed changes. The receipt by the department of the written notice of agreement constitutes final action by the department approving the amendment; or
     (ii) Submit an alternative proposal. If, in the opinion of the department, the alternative is consistent with the purpose and intent of the changes originally submitted by the department and with this chapter it shall approve the changes and provide written notice to all recipients of the written findings and conclusions. If the department determines the proposal is not consistent with the purpose and intent of the changes proposed by the department, the department may resubmit the proposal for public and agency review pursuant to this section or reject the proposal.
     (3) The department shall approve the segment of a master program relating to shorelines unless it determines that the submitted segments are not consistent with the policy of RCW 90.58.020 and the applicable guidelines.
     (4) The department shall approve the segment of a master program relating to ((critical)) wetlands and fish and wildlife habitat conservation areas as defined by RCW 36.70A.030(5) ((provided)) if the master program segment is consistent with RCW 90.58.020 and applicable shoreline guidelines, and if the segment provides a level of protection of ((critical)) wetlands and fish and wildlife habitat conservation areas ((at least equal to that provided by the local government's critical areas ordinances adopted and thereafter amended pursuant to RCW 36.70A.060(2))) that assures no net loss of shoreline ecological functions necessary to sustain shoreline natural resources as defined by chapter 173-26 WAC.
     (5) As of the date the department of ecology approves a local government's shoreline master program, or segment of the local government's shoreline master program relating to wetlands and fish and wildlife habitat conservation areas, adopted or updated under shoreline guidelines effective on or after January 17, 2004, the protection of wetlands and fish and wildlife habitat conservation areas, as defined by RCW 36.70A.030(5), located within shorelines of the state may be accomplished only through the local government's shoreline master program.
     (6) The department shall approve those segments of the master program relating to shorelines of statewide significance only after determining the program provides the optimum implementation of the policy of this chapter to satisfy the statewide interest. If the department does not approve a segment of a local government master program relating to a shoreline of statewide significance, the department may develop and by rule adopt an alternative to the local government's proposal.
     (((6))) (7) In the event a local government has not complied with the requirements of RCW 90.58.070 it may thereafter upon written notice to the department elect to adopt a master program for the shorelines within its jurisdiction, in which event it shall comply with the provisions established by this chapter for the adoption of a master program for such shorelines.
     Upon approval of such master program by the department it shall supersede such master program as may have been adopted by the department for such shorelines.
     (((7))) (8) A master program or amendment to a master program takes effect when and in such form as approved or adopted by the department. Shoreline master programs that were adopted by the department prior to July 22, 1995, in accordance with the provisions of this section then in effect, shall be deemed approved by the department in accordance with the provisions of this section that became effective on that date. The department shall maintain a record of each master program, the action taken on any proposal for adoption or amendment of the master program, and any appeal of the department's action. The department's approved document of record constitutes the official master program.